UKISI  N87 

mtlieCttpoflfttigark 

College  of  ^Ijpsiiciansi  anb  burgeons! 

Xibrarj) 


Gif-t  o:f 


Dr.  C.F.  MB.cDoyxauli 


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in  2010  with  funding  from 

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Ethics  and  Jurisprudence 

for 

Dentists 


BY 

EDMUND  NOYES,  D.  D.  S. 

Professor  of  Ethics  and  Jurisprudence 

in   Northwestern  University 

Dental  School 


Printed  and  Boand  by 
TUCKER-KENWORTHY  CO. 
Chicago 

I9I5 


C.    ^^.^dJ^.'Vv^^^^ow^-^    ^'^'^ 


Copyright,  January,  1915. 

by 
Edmund  Noyes,   D.   D.    S. 


PREFACE. 

The  writer  of  this  book  makes  but  little  claim  to  originaHty 
for  most  of  its  contents.  The  "Professional  Ethics,"  the  dis- 
cussion of  patents,  and  some  small  portions  in  other  parts  of 
the  book  have  been  thought  out  and  written  without  much  con- 
scious indebtedness  to  other  writings.  The  portion  on  the 
general  subject  of  ethics  is  derived  chiefly  from  the  "System 
of  Ethics"  by  Friedrich  Paulsen,  translated  by  Frank  Thilly, 
Professor  of  Philosophy  in  Cornell  University. 

The  "Jurisprudence"  has  been  derived  chiefly  from  the 
"Dental  Jurisprudence"  by  William  E.  Mikell,  Professor  of  Law 
in  the  University  of  Pennsylvania,  with  some  help  also  from 
the  "Dental  Jurisprudence"  by  Elmer  D.  Brothers,  Professor 
of  Medical  and  Dental  Jurisprudence  in  the  University  of  Illi- 
nois, and  from  the  "Dental  Jurisprudence"  by  William  F.  Reh- 
fuss,  D.  D.  S. 

It  is  possible  some  may  think  that  a  disproportionate  amount 
of  space  has  been  given  to  the  subject  of  general  ethics.  It  is 
the  writer's  belief,  however,  that  it  is  worth  while  for  young 
men  preparing  themselves  for  any  profession  or  any  business 
to  give  some  time  to  a  study  of  the  fundamental  principles  and 
sanctions  of  morality,  and  the  powers  and  dispositions  of  mind 
and  heart  by  which  the  conduct  of  life  should  be  determined 
and  the  rules  of  duty  should  be  obeyed ;  in  other  words,  the 
virtues  and  duties  which  characterize  good  men.  Professional 
ethics  can  have  little  authority  and  command  little  respect  unless 
it  is  understood  to  rest  upon  the  solid  foundation  of  the  general 
principles  of  morality. 


CONTENTS. 
PART  FIRST. 

ETHICS. 

CHAPTER   I.  Page. 

The  Moral   Ideal    S 

CHAPTER   II. 
Moral  Evolution,  Duty  and  Conscience 21 

CHAPTER   III. 
Egoism  and  Altruism,  Virtue  and  Happiness,  Morality  and  Religion,  Freedom  of 

the   Will    37 

CHAPTER    IV. 
Doctrine  of  Virtues  and  Duties,  Self-Control,  Temperance,  Courage 50 

CHAPTER    V. 

The  Bodily  Life — Food  and  Drink — Habitation  and  Clothing Rest  and  Recrea- 
tion. The  Economic  Life — Profession  or  \''ocation — Frugality  and  Extrava- 
gance        66 

CHAPTER    VI. 

The  Spiritual  Life  and  Culture,  Science  and  Art,  Honor,  Self -Knowledge 86 

CHAPTER  VII. 
Compassion   and   Benevolence — Justice — Magnanimity 97 

CB.AVTER  VIII. 
Love    of    Neighbor — Limitations — Charity — Selfishness — Love 116 

CHAPTER    IX. 

Veracity — Lie  of  Necessity — Promulgate  the  Truth — Martyrdom  for  Truth 121 

PART  SECOND. 

PROFESSIONAL    ETHICS. 

CHAPTER   X. 

Ethics  of  Business — of  Employment — of  Professions 138 

CHAPTER   XI. 
Professional  Advertising — Winning  a   Practice — Duties  to  Patients..... 144 

CHAPTER   XII. 

The  Duty  of  the  Dentist  to  Other  Dentists  and  to  the  Dental  Profession — Papers 

Read  at  Society  Meetings — Fees 150 

CHAPTER  XIII. 
Commissions  and  Split  Fees — Codes  of  Ethics — Patents 157 

CHAPTER  XIV. 
Principles  of  Medical  Ethics  of  the  American  Medical  Association 172 

PART  THIRD. 

DENTAL   JURISPRUDENCE. 
CHAPTER   XV. 

The  Status  of  the  Dentist — The  Right  to  Practice — Power  of  the  State  to  Regulate 

Practice — Relation  Between  Dentist  and  Patient 184 

CHAPTER   XVI. 
Liability  for  Compensation — Wives,  Minors,  Parents,  Guardians,  etc. — For  Breach 

of   Contract    201 

CHAPTER  XVII. 
Liability    of    Dentist   to    Patient    for    Malpractice — For    Infecting    a    Patient — For 
Operating  Without  Consent — Damages — Statute  of  Limitations — Definition  of 
Malpractice    217 

CHAPTER  XVIII. 

Liability  of  the  Dentist  to  the  State — Liability  for  Illegal  Practice— The  Dentist 
as  a  Witness — Privileged  Communications — Expert  Testimony — Identifying  the 
Dead — Jury  Duty   234 


CHAPTER  I. 

THE    MORAL    IDEAL. 

The  moral  obligations  and  duties  which  rest  upon  a  man, 
and  which  he  is  expected  to  assume  and  acknowledge  by  reason 
of  his  occupation,  are  as  important  a  part  of  his  education  and 
as  worthy  of  his  earnest  attention  and  effort  as  the  sciences 
and  arts  by  the  acquisition  of  which  he  seeks  to  prepare  himself 
for  his  profession  or  employment. 

Dentistry  has  developed  into  a  profession  independently 
of  the  medical  profession — that  is,  by  teaching  in  its  own  schools, 
and  conferring  its  own  degree  instead  of  teaching  in  the  medical 
schools  and  practicing  under  the  medical  degree,  and  this  has 
resulted  in  the  past  in  a  wider  separation  between  the  two  pro- 
fessions than  is  desirable  or  necessary.  That  dentistry  is  a 
branch  of  the  great  art  of  healing  is  beyond  controversy,  and 
the  broadening  scope  and  increasing  thoroughness  with  which 
the  medical  sciences  are  being  taught  in  the  dental  schools  is 
gradually  preparing  the  way  for  closer  relations,  a  more  intelli- 
gent cooperation,  and  greatly  increasing  cordiality  between  the 
two  professions.  These  cordial  relations,  expressed  by  consulta- 
tions together,  the  reference  of  suitable  cases  by  members  of  each 
profession  to  those  of  the  other,  and  the  mutual  acknowledgment 
that  certain  classes  of  cases  belong  exclusively  to  dental  practice 
and  other  classes  of  cases  exclusively  to  medical  practice,  would 
be  impossible  if  the  dental  and  medical  professions  did  not 
conform  to  essentially  the  same  standards  of  ethical  require- 
ments. As  a  matter  of  fact,  the  ethical  code  of  the  dental  pro- 
fession has  its  source,  its  inspiration,  and  its  authority  from 
that  of  the  medical  profession,  and  the  "Principles  of  Medical 
Ethics"  as  acknowledged  and  promulgated  by  the  American 
Medical  Association  are  of  equal  force  and  obligation  for  the 
dental  profession,  with  a  few  exceptions,  perhaps,  of  matters 
which  relate  to  things  not  included  in  dental  practice,  and  one 
or  two  in  which  dentists  are  not  accustomed  to  apply  the  medical 
rules  with  strictness. 


6  SYSTEM  OF  ETHICS. 

It  is  to  the  medical  profession,  therefore,  that  we  must 
look  for  the  origin  of  our  professional  ethics,  and  I  cannot  intro- 
duce our  subject  better  than  by  reading  from  an  editorial  in 
the  Chicago  Tribune  for  October  18,  1904: 

"The  Medical  Ethical  Code. 

"Doctors  are  continually  heard  to  say :  'No,  I  can't  do 
that.  It's  not  professional.'  It  is  comparatively  seldom  that 
such  an  insistence  on  a  professional  code  of  ethics  is  noticed 
in  the  conversation  of  lawyers  or  of  engineers  or  of  other  fol- 
lowers of  specialized  callings. 

"What  is  the  medical  ethical  code?  What  are  the  principles 
which  a  profession,  more  profuse  in  its  disinterested  charities 
than  any  other  profession  in  the  world,  has  established  for  its 
guidance  ? 

"It  was  about  2,300  years  ago  that  the  practicers  of  the  art 
of  healing  began  to  take  an  oath  emphasizing  the  responsibilities 
which  the  nobility  and  holiness  of  that  art  imposed  upon  them. 
Hippocrates,  forever  to  be  revered,  gave  the  oath  his  name. 
When  a  Greek  physician  took  the  Hippocratic  oath  and  when 
the  graduate  of  a  modern  medical  school  takes  it  the  act  is  one 
not  only  of  obligation  for  himself  but  of  recognition  for  a  great 
benefactor  of  mankind. 

"Here  follows  the  Hippocratic  oath  in  its  essential  parts : 

"  'I  swear  by  Apollo  the  physician  and  by  ^Esculapius  that 
I  will  reckon  him  who  taught  me  this  art  equally,  dear  to  me 
as  my  parents,  to  share  my  substance  with  him  and  relieve  his 
necessities  if  required,  to  look  on  his  offspring  in  the  same  foot- 
ing as  my  brothers,  and  to  teach  them  this  art  if  they  shall  wish 
to  learn  it.  I  will  follow  the  system  of  regimen  which,  according 
to  my  judgment,  I  consider  for  the  benefit  of  my  patients  and 
abstain  from  whatever  is  deleterious.  I  will  give  no  deadly 
medicine  to  any  one  if  asked  nor  suggest  any  such  counsel. 
With  purity  and  with  holiness  I  will  pass  my  life  and  practice 
my  art.  Into  whatever  houses  I  enter  I  will  go  into  them  for 
the  benefit  of  the  sick  and  will  abstain  from  every  voluntary  act 
of  mischief  and  corruption.  Whatever  in  connection  with  my 
professional  practice  or  not  in  connection  with  it,  I  hear  or  see 


THE  MORAL  IDEAL.  7 

in  the  life  of  men  which  ought  not  to  be  spoken  of  abroad,  I  will 
not  divulge,  as  reckoning  that  all  such  should  be  kept  secret.' 

"No  other  secular  profession  has  ever  reached  such  a  cor- 
porate consciousness  of  duties  which  it  corporately  owes  to  the 
rest  of  the  world.  The  Hippocratic  oath  assumes  that  simply 
because  a  man  has  learned  the  art  of  restoring  the  sick  to  health 
he  has  passed  into  a  realm  in  which  the  rules  of  personal  selfish- 
ness are  immediately  abridged,  if  not  expunged,  and  in  which 
a  new  and  special  attitude  toward  human  life  must  be  taken. 

"In  modern  times  the  Hippocratic  oath  has  been  adapted 
and  expanded  till  now  it  appears,  as  far  as  Chicago  is  con- 
cerned, in  a  sixteen-page  booklet,  entitled  'Principles  of  Medical 
Ethics  of  the  American  Medical  Association.'  The  chapters 
of  this  booklet  cover,  down  to  the  smallest  details,  such  subjects 
as  'The  Duties  of  Physicians  to  Their  Patients,'  'The  Duties 
of  Physicians  to  Each  Other,'  and  'The  Duties  of  the  Profession 
to  the  Public' 

"It  seems  that  certain  Chicago  physicians  have  fallen  from 
their  high  estate  in  respect  of  one  of  these  duties.  When  a 
physician  falls  he  falls  from  so  great  a  height  that  the  spectator 
cannot  but  be  affected.  Robert  Louis  Stevenson  was  not  far 
wrong  when  he  spoke  of  the  modern  scientific  medical  man  as 
probably  the  noblest  figure  of  the  age.  Except  the  priest,  the 
physician  is  the  first  object  of  approach  in  distress.  Except 
the  priest,  the  physician  gets  deepest  of  all  men  into  the  heart 
of  the  community.  The  brethren  of  the  physicians  who  have 
erred  in  the  present  matter  must  now  lift  their  standard  higher 
than  ever." 

Ethics  and  morality  are  synonymous  terms  and  may  be 
defined,  comprehensively,  as  "The  science  that  treats  of  human 
actions  and  mental  affections  considered  as  virtuous  or  vicious, 
right  or  wrong,"  and  also  the  application  of  this  science  to  the 
conduct  of  life;  in  other  words,  the  art  of  right  living.  In 
these  matters,  as  in  most  others,  the  art  preceded  the  science, 
but  nevertheless  the  chief  purpose  of  understanding  the  science 
is  to  enable  us  to  perfect  the  art. 

Professional  ethics  considers  the  character  and  conduct  of 
professional   people   with    respect   to   their  moral   qualities   ex- 


8  SYSTEM  OF  ETHICS. 

hibited  or  exercised  in  the  practice  of  their  profession.  The 
code  of  ethics  is  not,  as  some  have  seemed  to  suppose,  a  set 
of  rules  and  prescribed  modes  of  procedure  adopted  and  pro- 
mulgated with  sole  reference  to  the  purely  selfish  interests  of 
the  profession,  but  it  represents  the  discovery  and  application  to 
professional  conduct  of  the  fundamental  rules  of  morality. 

It  is  unreasonable  to  expect  that  a  man's  professional 
conduct  will  be  good  if  his  character  and  conduct  in  other 
respects  are  bad.  We  must  have  a  general  soundness  of  char- 
acter and  correctness  of  life  if  we  expect  to  stand  the  tests  of 
time  and  of  special  temptations  professionally.  It  is  proper, 
therefore,  to  consider,  as  concisely  and  briefly  as  we  can,  some 
of  the  more  important  principles  and  requirements  of  ethics 
before  seeking  to  discover  their  application  to  professional 
conduct. 

Text  books  and  treatises  on  ethics  are  numerous  as  well  as 
voluminous,  and  if  we  were  to  take  one  of  them,  like  Frederick 
Paulsen's  "System  of  Ethics,"  for  instance,  which  is  a  book 
of  700  large  octavo  pages,  and  undertake  to  acquire  a  knowl- 
edge of  its  contents,  we  would  need  two  or  three  lectures  a  week 
for  the  whole  term  of  school,  and  much  private  study  by  each 
member  of  the  class,  and  have  no  time  left  for  professional 
ethics,  which  is  the  real  object  we  have  in  view. 

You  must  realize,  therefore,  that  the  best  I  can  do  for  you 
in  the  time  we  can  devote  to  it  will  be  extremely  meager  and 
inadequate  as  a  presentation  of  the  great  science  and  art  of 
morality.  I  hope  that  it  may  not  seem  so  unsatisfactory  consid- 
ered merely  as  an  introduction  to  the  subject  of  professional 
ethics. 

The  object  of  morality  is  human  welfare,  and  the  criterion 
of  character  and  conduct  is  the  influence  for  good  or  evil 
resulting  therefrom.  The  one  whose  character  produces  evil 
results  to  himself  or  others  is  bad,  and  acts  whose  natural  and 
expected  results  are  harmful  are  evil  acts.  Conduct  resulting 
beneficially  is  good,  and  the  best  character  and  conduct  is  that 
which  produces  the  greatest  good  of  the  highest  type  and  for 
the  longest  time. 

The  most  fundamental  and  important  question  or  problem 


THE  MORAL  IDEAL.  9 

of  ethics  relates  to  the  nature  of  the  moral  ideal,  the  ultimate 
or  highest  good,  the  object  of  life  the  accomplishment  of  which 
may  be  considered  a  sufficient  end  or  result  in  itself  and  not 
merely  as  a  means  to  some  other  and  more  satisfactory  attain- 
ment. It  may  as  well  be  acknowledged  at  once  that  it  is  only 
the  nature  and  characteristics  of  the  moral  ideal  that  we  may 
hope  to  discover,  and  not  its  entire  scope  and  content;  for  life 
and  the  character  and  conduct  which  manifest  its  activities,  is 
progressive  and  what  its  final  and  perfected  results  may  be,  no 
man  can  now  foresee,  if,  indeed,  the  progress  and  development 
of  an  immortal  spirit  shall  ever  cease. 

The  best  brief  statement  I  have  seen  is  that  the  moral  ideal 
for  man  consists  in  the  full  development  of  his  life — not  the 
life  of  one  man,  but  the  lives  of  all  men;  or  rather,  perhaps, 
the  moral  ideal  for  any  one  man  is  the  perfect  development  and 
exercise  of  his  own  life,  and  the  largest  help  he  may  be  able 
to  give  to  promote  the  same  end  for  all  others  within  the  reach 
of  his  personal  influence.  This  statement  or  definition  must  be 
taken  with  due  regard  for  proportionate  and  relative  values,  a 
clear  perception  that  the  soul  is  better  than  the  body,  and  the 
growth  and  use  of  the  intellectual,  moral,  and  spiritual  nature 
is  a  higher  good  than  the  development  of  the  body  and  the 
performance  of  its  functions  or  indulgence  of  its  desires. 

As  a  practical  statement  of  the  highest  ideal  of  good,  this 
is  necessarily  vague,  and  must  mean  something  different  for 
each  individual  life,  because  each  has  its  personal  inheritance 
of  powers  and  possibilities  and  its  own  environment  and  influ- 
ences which  help  or  hinder  its  unfolding,  and  all  will  differ 
from  and  come  short  of  an  ideally  perfect  life.  Notwithstand- 
ing its  vagueness,  perhaps  even  better  because  of  it,  this  ideal 
of  a  life  perfectly  developed,  and  normally  exercised,  and  influ- 
encing others  for  good  to  the  extent  of  its  opportunity,  should 
be  pictured  in  the  imagination  of  every  boy  and  girl,  every  man 
and  woman — a  constantly  changing,  ever  expanding  goal,  the 
object  of  endeavor  and  emulation. 

Something  needs  to  be  said  in  this  connection  about  the 
contention  of  many  of  the  ethical  philosophers  that  the  highest 
good  consists  in  the  feelings  of  pleasure  that  life  procures.     It 


10  SYSTEM  OF  ETHICS. 

is  true  that  pleasure  is  the  normal  and  usual  accompaniment  of 
healthy  life  and  right  activity  of  body  or  mind.  It  may  even 
be  considered  one  of  the  important  signs  or  indications  by  which 
we  determine  that  welfare  is  being  accomplished,  but  it  is  so 
far  from  being  the  only  criterion  of  welfare  and  the  exclusive 
object  of  pursuit  that  by  universal  consent  the  "pleasure  seek- 
ers" are  classed  as  bad  and  not  good.  Pleasure  should  be 
subordinated  to  personal  welfare,  to  the  welfare  of  others,  and 
to  the  law  of  right. 

It  may  be  urged  that  the  phrase  "pleasure  seekers"  is  almost 
exclusively  applied  to  those  who  spend  their  lives  in  sensual 
indulgences,  and  that  those  who  restrict  such  gratifications  still 
have  pleasure  as  their  object,  though  of  a  higher  and  nobler, 
or  at  least,  of  a  different  sort.  This  may  be  a  very  plausible 
abstraction  to  argue  about,  but  practically  all  good  people  must 
often  deny  or  restrict  the  indulgence  of  pleasures  of  all  sorts 
without  any  conscious  expectation  that  better  pleasures,  either 
near  or  remote,  will  be  substituted  for  them.  All  we  can  say 
is  that  they  are  denied  to  us,  or  we  deny  them  to  ourselves, 
for  the  sake  of  welfare  or  a  better  life.  Notwithstanding  these 
limitations  and  restrictions,  it  is  proper  to  consider  pleasure 
as  an  important  part  of  the  ideal  of  good.  We  may  say 
that  the  moral  ideal  has  two  elements.  The  primary  one 
may  be  characterized  as  worth,  or  welfare,  which  we  have 
described  as  consisting  in  the  full  development  and  exercise 
of  human  life.  The  secondary  element  is  pleasure.  To 
these  we  might  add  a  third  element,  beauty,  which  needs  no 
other  justification  than  the  pleasure  of  beholding  it  and  the 
indication  of  perfection  it  implies.  All  these  expressions — 
welfare,  pleasure,  beauty,  are  somewhat  vague  because  of  the 
nature  of  the  things.  Because  "A  human  value,  experience  or 
pleasure,  cannot  be  exactly  weighed  or  measured."  Also  because 
the  development  of  life  and  the  enlargement  of  its  activities 
brings  into  view  a  wider  range  of  its  possible  activities  and 
attainments,  so  that  the  moral  ideal  of  attainable  perfection  is 
larger  and  higher  for  some  men  than  others,  and  seems  greater 
and  better  to  the  apprehension  of  a  man  or  a  people  as  develop- 
ment progresses,  and  we  believe  that  the  evolution  or  develop- 


THE  MORAL  IDEAL.  11 

ment  of  man,  either  in  his  individual  character  or  in  society,  is 
yet  very  far  from  being  completed. 

There  have  been  many,  both  of  philosophers  and  theologians, 
who  have  taken  the  opposite  view,  namely,  that  the  human  race  is 
and  has  been  degenerating  instead  of  developing.  Probably 
this  view  was  almost  universal  among  the  early  Christians. 
The  basis  of  it  is  a  belief  that  originally  man  fell  from  a  state 
of  moral  perfection,  since  which  time  he  has  been  tending 
downward  toward  final  destruction;  salvation  from  evil  char- 
acter or  evil  destiny  in  this  world  or  the  next  having  reference 
to  the  rescue  of  individuals,  whether  in  small  or  great  numbers, 
from  the  general  ruin. 

I  beheve  that  most  thoughtful  people,  whether  scientists 
or  theologians,  now  take  a  different  view,  one  in  general  accord 
with  the  theory  of  development  or  evolution,  or  at  least  a 
belief  that  there  have  been  introduced  into  the  world  succes- 
sively higher  and  more  complicated  forms  of  life,  and  that  the 
evolution  or  advancement  has  been  characteristic  of  moral  and 
spiritual  life  as  well  as  of  physical  life. 

I  prefer,  myself,  to  interpret  the  story  of  the  Garden  of 
Eden  as  an  allegory  intended  to  represent  the  awakening  of 
man  to  a  consciousness  of  God,  of  spiritual  life  and  moral 
responsibility.  Previous  to  such  an  awakening  the  human  race 
was  innocent,  just  as  we  suppose  the  lower  animals  to  be, 
because  unconscious  of  moral  quality  in  conduct. 

It  must  be  noticed  particularly  that  this  very  doctrine  of 
evolution  has  a  double  aspect,  and  gives  the  pessimists  (if  we 
may  so  call  those  who  believe  in  the  generally  increasing  wicked- 
ness of  the  human  race  and  their  final  destruction  as  a  punish- 
ment therefor)  very  substantial  ground  to  stand  upon,  for  the 
plasticity  of  life  which  makes  possible  a  gradual  evolution  and 
increasing  perfection  from  generation  to  generation  necessarily 
implies  also  the  possibility,  and  what  is  easily  observable  in  the 
human  race,  the  very  great  danger  of  degeneracy.  There  seems 
no  reason  to  doubt  that  in  the  long  history  of  life  in  the  world 
there  have  been  species  that  have  remained  stationary  or  have 
degenerated  instead  of  contributing  anything  toward  the  ad- 
vancing evolution  of  life  into  higher  forms,  and  it  is  a  matter 


12  SYSTEM  OF  ETHICS. 

for  easy  enough  observation  that  multitudes  of  individuals,  many 
families,  and  possibly  some  nations  of  men  have  degenerated  to 
final  extinction.  History  records  both  the  rise  and  the  decline 
of  dynasties,  reigning  families  and  nations.  Whether  the  nation 
has  yet  appeared  that  will  be  found  worthy  to  carry  forward 
continually  the  development  of  humanity,  or  whether  it  will 
have  to  be  done  by  some  new  nation  formed  out  of  such  remnants 
of  the  old  nations  as  prove  worthy  of  preservation,  we  can  only 
conjecture  and  hope.  How  often  the  sad  story  of  decline  and 
destruction  following  upon  development  and  success  must  be 
repeated  in  the  future  history  of  nations  or  families,  no  man 
is  wise  enough  to  tell.  The  hope  of  the  world  lies  in  the  indi- 
viduals, the  families,  the  nations  and  races  of  men  that  have 
and  will  continue  to  have,  sufficient  moral  vigor  and  strenuous- 
ness  of  purpose  to  carry  forward  a  little,  the  evolution  of  indi- 
vidual, and  social,  and  national  life,  and  at  last,  of  all  human 
life — toward  a  more  harmonious  and  perfect  development.  Men 
are  not  passive  in  the  hands  of  fate,  or  providence,  or  cir- 
cumstances. They  either  grow  better  or  worse  by  the  effects 
of  their  own  choices  and  activities,  and  I  need  only  to  suggest 
the  supreme  importance  to  each  individual  that  he  be  morally 
and  spiritually  progressive  instead  of  a  degenerate. 

What  the  moral  ideal  may  signify  to  any  particular  indi- 
vidual depends  upon  what  his  understanding  and  imagination 
may  conceive  of  the  perfections,  the  knowledge,  the  power  and 
influence,  and  variety  of  activities,  and  duration  of  existence 
which  a  human  being  may  attain. 

The  previous  history  of  our  morality  and  theory  of  life 
which  have  been  and  still  continue  most  influential  in  the  life 
of  the  Western  nations,  divides  itself  into  three  periods : 
^"The  first  embraces  the  development  of  the  ancient 
world  to  its  conversion ;  the  second,  the  Christian  development 
with  its  two  halves,  the  Christianity  of  the  Old  World,  and 
medieval  Christianity;  the  third,  the  development  of  modern 
times  which  has  not  yet  come  to  an  end."  The  best  ethical 
philosophy  of  the  ancient  world  is  that  of  the  Greeks,  which  has 
also,  of  all  the  ancient  systems,  most  influenced  the  thoughts  of 
the  modern  western  nations. 


^(Paulsen,  page  34). 


THE  MORAL  IDEAL.  13 

It  is  impossible  for  us  to  take  time  to  give  an  account  of 
Greek  ethics,  and  I  can  only  quote  a  few  sentences  from 
Paulsen's  summary  of  its  main  features. 

^"It  agrees  with  the  popular  Greek  view  that  the  highest 
good  consists  in  the  perfection  of  man  as  a  natural  being. 
Special  stress  is  laid  upon  the  development  of  the  intellectual 
side.  Even  the  popular  conception  recognizes  the  great  impor- 
tance of  the  intellect  for  human  perfection." 

"The  philosophers,  the  specific  types  of  the  Greek  people, 
as  the  prophets  are  of  the  Israelites,  go  still  further  and  make 
reason  the  root  and  crown  of  all  human  excellence.  For  them 
wisdom  or  philosophy  is  both  the  means  and  the  content  of 
eudoemonia — the  former,  in  so  far  as  it  acquaints  us  with  the 
highest  good  and  regulates  practical  life  to  the  end  of  reahzing 
it — the  latter,  in  so  far  as  philosophy,  or  the  scientific  contem- 
plation of  the  universe,  is  the  highest,  freest  function  of  human 
nature,  one  that  is  desired  solely  for  its  own  sake.  It  is  said 
that  Anaxagoras,  being  once  asked  for  what  end  he  had  been 
born,  answered :  'For  the  contemplation  of  the  sun  and  moon 
and  heaven,  and  the  order  governing  the  entire  universe.'  This 
is  really  the  answer  which  the  entire  Greek  philosophy,  and  the 
Greek  mind  in  general,  gives  to  the  question." 

"Modern  scientific  research  is,  as  compared  with  Greek- 
philosophy,  more  like  labor,  often  like  petty  and  arduous  labor. 
The  physical  or  historical  investigator  of  our  time  employs  an 
enormous  apparatus  of  learning  and  technical  skill,  collections  and 
instruments,  in  order  to  throw  light  upon  some  obscure  nook 
of  reality.  The  result  of  his  work  may  at  some  time,  in  some 
connection  or  other,  assist  us  somewhat  in  understanding 
reality." 

But  no  one  now  expects  to  be  able  to  understand  all  of 
reality  or  fully  to  understand  the  great  order  of  the  universe. 

"The  Greek  philosophers,  on  the  other  hand,  were  happy  in 
the  belief  that  it  was  possible,  and  that  each  one  of  them  would 
be  able  to  unravel  the  ultimate  mysteries  of  the  universe  by  pure 
contemplation.    Even  Aristotle,  the  great  observer,  declares  that 


'(System  of  Ethics,  page  58). 


14  SYSTEM  OF  ETHICS. 

of  all  activities,  scientific  investigation  is  in  least  need  of  external 
aids,  so  convinced  is  he  that  the  apparatus  of  research  is  a 
purely  secondary  affair." 

On  its  practical  side  the  Greek  ethics  or  philosophy  made 
much  of  physical  perfection  and  the  pleasures  of  healthy  bodily 
activities,  and  of  the  duties  of  men  to  society  and  to  the  state. 
Their  games,  sports,  athletic  competitions,  etc.,  had  both  these 
ends  in  view,  namely,  to  develop  the  full  capacity  of  bodily 
powers  for  the  sake  of  the  zest  and  pleasure  of  living,  and  also 
to  produce  a  strong  and  hardy  race  of  men  for  the  defence 
of  the  state  in  war.  Their  inculcation  of  the  virtues  of  courage, 
temperance,  self-control  of  bodily  impulses  and  desires,  and 
justice  in  social  intercourse  and  in  the  administration  of  law 
were  for  the  same  double  purpose.  Their  ideals  of  life  and 
standards  of  conduct  had  reference  to  the  present  earthly  life. 
While  the  Greeks  were  not  destitute  of  the  hope  and  expectation 
of  immortality,  it  would  seem  that  their  beHef  in  a  future  life 
had  very  little  influence  upon  either  the  ideals  or  the  conduct 
of  the  present  life. 

Christianity  turned  the  thoughts  and  desires  of  men  toward 
the  immortal  and  spiritual  life,  whose  transcendent  value  and 
infinite  duration  made  the  bodily  and  earthly  life  seem  insig- 
nificant and  worthless  by  comparison,  and  whose  rewards  and 
punishments  became  the  strongest  motives  and  sanctions  for 
both  the  ideals  and  the  conduct  of  the  earthly  life.  The  perse- 
cutions, the  poverty,  and  often  the  almost  incredible  hardships 
which  the  early  Christians  endured,  together  with  the  belief, 
then  probably  universal  among  the  Christians,  that  this  wicked 
world  was  doomed  to  very  speedy  destruction,  tended  still 
further  to  a  glorification  of  the  heavenly  life  and  a  contemptuous 
disregard  of  the  present,  which,  indeed,  for  many  of  them  held 
very  little  of  comfort  or  pleasure.  There  is  little  room  to  doubt 
that  the  early  Christians  greatly  undervalued  the  earthly  life, 
and  as  a  consequence  gave  too  little  heed  to  some  of  its  duties 
and  opportunities  as  well  as  its  perfections  and  pleasures. 

The  various  orders  of  monks,  nuns,  hermits,  and  other 
ascetics  carried  these  ideas  still  further  and  believed  that  the 
physical  and  earthly  life  is  antagonistic  and  likely  to  be  destructive 


THE  MORAL  IDEAL.  15 

of  spiritual  life  unless  constantly  suppressed  and  mortified. 
These  various  orders,  consecrated  to  chastity,  poverty,  and  obe- 
dience to  the  authority  of  the  church  as  expressed  in  the  com- 
mands of  the  priests,  bishops,  and  other  officers,  and  finally  of  the 
pope,  probably  served  a  useful  purpose  as  a  protest  against  the 
prevalent  self-indulgence,  licentiousness  and  brutality  of  the 
times,  by  showing,  in  living  examples,  the  capacity  of  man  to  put 
his  physical  fife  and  bodily  impulses  under  a  rigid  discipline  and 
control.  The  ascetics  went  much  further  than  this  and  attempted 
and  believed  salutary,  not  merely  self-control,  and  the  moderate 
and  temperate  satisfaction  of  natural  impulses  and  desires,  but 
their  extinction.  They  appeared  to  think  pain,  hunger,  thirst, 
cold,  heat,  ridicule,  contumely,  persecution — everything  disagree- 
able, to  be  good  for  a  man's  soul,  in  proportion  to  their  severity, 
so  they  tortured  themselves,  and  sought  to  have  the  food  and 
drink  they  must  take  to  sustain  life  as  unpalatable  and  disagree- 
able as  possible,  and  generally  "mortified"  and  punished  them- 
selves in  every  way  they  could  think  of.  It  seems  very  strange 
to  us  that  they  should  have  thought  it  a  deadly  sin  to  commit 
suicide,  but  meritorious  in  the  highest  degree  to  kill  themselves 
by  inches. 

Not  all  of  the  celibate  orders  were  to  be  characterized  in 
this  way.  Much  the  larger  number  were  too  actively  engaged  in 
useful  services  of  various  sorts  to  carry  self-punishment  to  any 
such  extremes,  and  it  was  these,  whose  lives  of  self-denial  and 
unselfish  ministry  to  the  sinful  and  unfortunate  were  constantly 
under  observation  of  the  communities  in  which  they  lived,  who 
exercised  a  salutary  influence  upon  the  world,  while  the  more 
extreme  of  the  self-torturers  were  for  the  most  part  secluded 
from  public  observation  in  monasteries  and  convents  and  their 
harmful  influence  fortunately  lessened  therebyv 

Modern  ethics  and  modern  Christianity  appreciate  both 
earthly  and  heavenly,  bodily  and  spiritual  values,  regarding  the 
physical  life  as  the  foundation  and  the  instrument  for  the  use 
and  manifestation  of  the  intellectual  and  spiritual  life  during  the 
period  of  earthly  existence.  That  the  physical  life  should  be 
subordinate  and  subservient  to  the  intellectual  and  spiritual  life 
is  normal  for  man,  and  therefore  conducive  to  the  welfare  of 


16  SYSTEM  OF  ETHICS. 

both  body  and  soul,  while  a  reversal  of  this  order,  making  the 
soul  servant  of  the  body  first  brutalizes,  and  finally  destroys  both 
body  and  soul.  Modern  Christianity  gives  constantly  increasing 
attention  and  effort  to  procure  a  complete  and  symmetrical  de- 
velopment and  sound  health  of  physical  life,  always  having  the 
purpose  in  view  that  intellectual  and  spiritual  life  are  thereby 
promoted  and  have  a  better  instrument  for  their  expression. 
Life,  whether  physical  or  spiritual,  is  always  confronted  by 
dangers  as  well  as  opportunities,  and  some  men  are  so  well  con- 
tent with  the  perfection  of  physical  life  that  they  neglect  and 
ignore  the  opportunity  it  offers  them  to  cultivate  the  nobler  ele- 
ments of  character,  and  so  degenerate  instead  of  develop,  from 
the  very  submit  of  physical  perfection,  which  offers  them  the 
opportunity  and  incentive  for  progressive  development  of  higher 
and  spiritual  powers. 

Paulsen  says  (page  157)  :  "Three  great  truths  Christianity 
has  engraven  upon  the  hearts  of  men. 

"The  first  is :  Suffering  is  an  essential  phase  of  human  life. 
The  Greeks  were  familiar  with  suffering  but  only  as  a  fact  which 
ought  not  to  be.  *  *  *  Christianity  has  taught  us  to  appreciate 
suffering;  suffering  is  not  merely  a  brutal  fact,  but  essential  to 
the  perfect  development  of  the  inner  man;  suffering  withdraws 
the  soul  from  too  complete  devotion  to  the  temporal  and  perish- 
able; it  is  the  antidote  to  vanity  and  the  love  of  show;  it  is,  in 
Christian  phrase,  the  great  means  of  education  by  which  God 
turns  our  hearts  from  the  earthly  and  temporal  upwards,  to  the 
eternal,  to  Himself.  And  so  suffering  leads  to  inner  peace." 
*     *     * 

"The  second  great  truth  which  Christianity  has  impressed 
upon  humanity  is  this :  Sin  and  guilt  are  essential  phases  of 
human  life.  This  truth,  too,  the  Greeks  did  not  see,  or  at  least 
not  in  its  entire  force.  *  *  *  For  Christianity,  it  is  the  most 
serious  and  the  most  awful  truth  that  the  inclination  to  evil  is 
deeply  rooted  in  the  essence  of  the  natural  man.  *  *  *  it  is 
an  undoubted  truth  that  human  nature  contains,  besides  beautiful 
and  good  capacities  and  impulses,  inclinations  which  justify  the 
harsh  remark  that  man  is  the  wicked  animal.  *  *  *  The 
ancients  were  not  conscious  of  the  awfulness  of  the  thing;  it  did 


THE  MORAL  IDEAL.  17 

not  seem  to  be  incompatible  with  their  demands  upon  human 
nature.  Christianity  has  raised  the  standard;  it  measures  man 
by  the  justice  and  holiness  of  God,  which  have  become  incarnate 
in  Jesus.  *  *  *  It  is  impossible  for  us  to  accept  evil  as  com- 
placently as  did  the  Greeks."    *    *    * 

"The  third  great  truth  which  Christianity  has  impressed 
upon  us  is :  The  world  lives  by  the  vicarious  death  of  the  just 
and  innocent.  Whatever  system  loving  theology  may  have  made 
of  it,  it  remains  the  profoundest  philosophical-historical  truth. 
The  nations  owe  their  existence  to  the  willingness  of  the  best  and 
the  most  unselfish,  the  strongest  and  the  purest,  to  offer  them- 
selves for  sacrifice.  Whatever  humanity  possesses  of  the  highest 
good,  has  been  achieved  by  such  men,  and  their  reward  has  been 
misunderstanding,  contempt,  exile,  and  death."    *     *     * 

"Joined  with  these  three  elements  is  a  fourth:  th.e  longing 
for  the  transcendent.  Antiquity  was  satisfied  with  the  earth; 
the  modern  era  has  never  been  wholly  free  from  the  feeling  that 
the  given  (present)  reality  is  inadequate.  Something  of  the 
mood  which  Christianity  introduced  into  the  Occident — the  feel- 
ing that  the  real  home  of  the  soul  is  not  on  earth,  that  this  life 
is  a  pilgrimage  in  a  foreign  land — constantly  confronts  us  in  the 
poetry  and  in  the  life  of  the  modern  age,  and  not  only  among 
those  who  accept  the  teachings  of  primitive  Christianity,  but  also 
among  the  children  of  the  world.  *  *  *  After  all  this  we 
may  say :  the  mixture,  antagonism,  and  reconciliation  of  Christian 
and  Greek  elements  is  characteristic  of  the  modern  conception  of 
life  and  the  world.  There  are  times  when  the  former,  and  there 
are  times  when  the  latter  preponderate.  *  *  *  Indeed,  if  man 
were  a  purely  logical  being,  then  he  would  have  to  draw  the  line 
sharply  between  these  extremes ;  the  affirmation  and  the  negation 
of  this  earthly  life,  Hellenic  love  of  life  and  Christian  yearning 
for  deliverance  from  all  that  is  transitory,  would  be  regarded  by 
him  as  contradictory  opposites,  between  which  there  can  be  no 
middle  ground.  But  man  is  not  mere  intelligence,  his  inner  life 
is  not  a  logical  mechanism  which  rejects  everything  contradictory; 
he  is  also  and  primarily  a  willing  and  feeling  being,  a  being  that 
experiences  pleasure  and  pain,  hope  and  fear,  love  and  hate, 
admiration  and  contempt.     The  judgments,  too,  which  he  pro- 


18  SYSTEM  OF  ETHICS. 

nounces  as  such  a  being,  he  endeavors  to  comprehend  into  a 
system;  thus  arise  the  different  conceptions  of  hfe,  and  the 
interpretations  of  the  world  based  upon  them,  the  religious  sys- 
tems. The  greatest  opposition  which  exists  between  them  is  that 
obtaining  between  culture-religions  or  world-affirming  religions, 
and  religions  of  redemption.  But  extremes  do  not  exclude  each 
other  here  as  in  scientific  systems.  *  *  *  The  lines  are  not  so 
sharply  drawn,  there  is  more  inconsistency,  mixture,  approxima- 
tion,— nay,  these  are  in  a  certain  sense  natural  and  necessary." 
*    *    * 

'Tn  conclusion,  let  me  say  a  word  concerning  an  objective 
approximation,  which  becomes  apparent  when  we  compare  the 
two  types  with  a  third,  to  which  they  are  both  opposed." 

"We  may  distinguish  between  three  conceptions  of  a  good 
life,  and  accordingly  between  three  forms  of  conduct.  The  first 
seeks  the  good  in  sensuous  enjoyment;  the  second  finds  it  in 
the  exercise  of  human  spiritual  powers  in  a  varied  civilisation; 
the  third,  at  last,  transcends  the  earth  and  discovers  the  goal  of 
life  in  the  blessedness  of  the  hereafter,  which  is  here  enjoyed  in 
anticipation.  The  first  view  is,  according  to  the  Greek  belief, 
the  ideal  of  the  Asiatic  barbarians ;  the  second,  that  of  the 
Greeks;  the  third,  that  of  the  Christians." 

"It  is  plain  that  the  second  and  third  views  make  common 
cause  against  the  first.  The  rule  of  reason,  the  limitation  and 
discipline  of  the  sensuous  desires,  is  demanded  by  both  as  the 
precondition  of  perfection.  So  far  as  that  goes,  an  ascetic  ele- 
ment is  by  no  means  wanting  even  in  Greek  morality;  it  is 
strongly  enough  emphasized  by  Plato,  the  Stoics,  and  still  more 
by  the  later  philosophers.  Indeed  the  word  "Asceticism"  is 
derived  from  the  Greek  language, — it  signifies,  first  of  all,  the 
discipline  of  the  animal  nature,  which  was  practiced  in  the 
gymnasia,  and  also  that  of  the  inner  life,  which  was  practiced 
in  the  philosopher-schools.  *  *  *  Qf  course,  Christianity, 
with  its  demand  of  self-denial  and  holiness,  goes  much  further 
than  Greek  asceticism,  which  remained  more  or  less  a  form  of 
self-preservation;  the  development  and  exercise  of  the  spiritual 
powers  in  philosophy  and  science  formed  the  positive  content  of 
life,  for  the  sake  of  which  the  discipline  of  the  senses  was 
demanded." 


THE  MORAL  IDEAL.  19 

"On  the  other  hand,  however,  we  find  attempts  at  a  positive 
treatment  of  the  mundane  world  in  Christianity;  among  them, 
for  example,  the  government  of  human  life  according  to  the 
principle  of  brotherly  love,  the  perfection  of  a  kingdom  of  God 
on  earth.  The  love  of  neighbor  becomes  a  definite  and  tangible 
thing  only  in  case  an  earthly  goal  is  presupposed,  which  it  is  the 
function  of  love  to  assist  in  attaining." 

It  seems  to  me  this  is  a  mistaken  limitation,  for  it  is  hard 
to  see  why  it  is  not  just  as  much  the  function  of  the  love  of 
neighbor  to  assist  in  attaining  the  goal  of  life  in  the  blessedness 
of  the  hereafter  as  in  the  perfection  of  the  earthly  life. 

Perhaps  Paulsen  is  too  much  inclined  to  regard  these  three 
ideals  of  life  as  antagonistic  and  exclusive  of  each  other.  They 
are  rather  successive  developments  or  enlargements  of  life,  and 
as  the  Greek  ideal  did  not  call  for  the  extinction  of  the  physical 
and  sensuous  life,  but  only  for  its  discipline  and  subordination 
to  a  better  use  and  expression  of  life,  so  the  Christian  ideal  does 
not  call  for  the  extinction  of  either  the  physical  or  the  intellectual 
life,  but  only  for  the  discipline  and  subordination  of  both  to  a 
better  use  of  life  in  a  disinterested  service  of  humanity,  with  a 
perfected  moral  and  spiritual  life  in  both  this  world  and  the 
next  as  the  ultimate  object  in  view.  As  a  matter  of  fact,  estab- 
lished by  observtaion  and  experience,  such  a  discipline  and  subor- 
dination of  the  lower  powers  of  life  for  the  benefit  of  the  higher, 
is  good  for  them.  The  discipline  of  the  physical  life  and  sensuous 
pleasures  by  the  Greeks  resulted  in  a  greater  zest  for  sensuous 
pleasures,  a  better  physical  development  for  endurance  and  service 
and  the  preservation  of  health  and  life  to  a  greater  age  than  was 
accomplished  by  the  "outside  barbarians"  who  were  supposed  to 
have  no  better  object  in  life  than  physical  perfections  and  pleas- 
ures. In  like  manner,  the  subordination  and  discipline  of  the 
intellectual  powers  and  the  pursuits  of  science,  philosophy  and 
art,  for  the  better  Christian  ideals  of  service  to  moral  and 
spiritual  ideals  and  the  hopes  for  immortality,  have  helped  to 
develop  an  or  I,  a  science,  and  a  philosophy,  beneficent  in  their 
results  and  widespread  and  inclusive  as  to  the  numbers  benefited, 
in  comparison  to  which  the  best  attainments  of  Greek  art,  science, 
and  philosophy,  were  no  more  than  a  prophecy  and  a  hope. 


20  SYSTEM  OF  ETHICS. 

It  is  to  be  remembered  that  so  long  as  man  is  progressive 
(any  man,  or  the  race  of  mankind),  the  moral  ideal  is  receding 
and  enlarging, — always  striven  for  but  never  attained.  Every 
good  man  can  comprehend  and  imagine  thoughts,  feelings,  and 
motives,  knowledge,  and  skill,  and  useful  services,  better  than 
those  to  which  he  has  attained,  and  if  by  and  by  he  shall  succeed 
in  reaching  his  present  ideals,  his  larger  life  and  better  activities 
will  bring  to  his  comprehension  still  better  powers  and  greater 
usefulness.  On  the  other  hand,  the  moral  ideal,  the  true  purpose 
of  living,  is  realized  day  by  day  by  every  one  in  proportion  as 
he  may  accomplish  such  perfection  and  health  of  body  and  soul 
as  are  possible  to  him  and  employ  his  strength  and  activity  in 
useful  service.  Therefore,  though  the  chase  after  the  moral  ideal 
in  the  perfection  of  life  and  conduct  may  never  reach  its  goal, 
yet  is  the  pursuit  neither  hopeless  nor  fruitless,  but  captures  all 
along  the  way  the  richest  rewards  that  human  life  may  receive. 


CHAPTER  II. 

MORAL    EVOLUTION,    DUTY    AND    CONSCIENCE. 

The  object  of  life  is  the  perfection  of  hfe,  but  this  cannot 
be  attained  by  individuals  acting  each  by  himself  and  for  himself 
alone.  He  who  attempts  that,  will  surely  find  the  truth  of  the 
paradox :  "He  that  will  save  his  Hfe  shall  lose  it."  Every  good 
life  must  be  used  to  help  all  other  lives  it  may  influence,  toward 
such  perfection  and  usefulness  as  may  be  possible  for  them,  and 
personal  and  individual  ivelfare  cannot  be  attained  without  such 
service.  Man  is  a  social  being;  each  must  receive  much  from 
many  others;  each  should  therefore  give  much  to  many  others. 

Scientific  men  describe  the  process  of  evolution  as  being 
accomplished  by  a  "survival  of  the  fittest,"  and  I  believe  some 
have  written  about  it  as  though  they  believed  it  characterized 
by  a  wholly  selfish  and  uncompromising  "struggle  for  life"  by 
each  individual  against  all  comers,  in  which  the  strongest  and 
best  developed  survived  and  were  able  to  develop  new  organs 
and  functions,  or  to  modify  and  perfect  old  ones,  and  so  gradu- 
ally to  adapt  themselves  more  perfectly  to  their  environment  or 
to  accommodate  themselves  to  the  changes  in  their  environment 
brought  about  by  the  slow  progress  of  the  world.  By  this  means, 
higher  and  more  complicated  forms  of  life  were  developed  out 
of  the  lower.  Evolution  was  always  accompanied  by  the  elimi- 
nation of  the  weak  and  unfit,  and  the  degeneracy  and  extinction 
of  many  species  that  proved  unable  to  adapt  themselves  to  the 
changes  taking  place  in  the  environment  in  which  they  must  live. 

A  disposition  is  sometimes  seen  to  regard  the  ideas  of  service 
and  sacrifice  for  the  good  of  others,  and  especially  the  sympathy 
and  philanthropy  which  seek  to  improve  or  preserve  the  weak 
and  unfit,  as  unscientific  and  of  doubtful  benefit  to  the  progress 
of  the  world,  and  probably  it  is  necessary  to  take  account  of 
moral  and  spiritual  values  in  order  to  make  out  a  case  for  the 
preservation  of  the  physically  weak  and  unfit;  however,  it  needs 
but  a  moment's  reflection  to  perceive  that  the  "struggle  for  life" 
even  in  its  lower  forms,  is  not  wholly  personal  and  selfish.  The 
dependence  of  individuals  upon  each  other,  and  consequently. 


22  SYSTEM  OF  ETHICS. 

the  "struggle  for  the  lives  of  others"  began  to  show  itself  long 
before  the  advent  of  man  upon  the  earth.  Its  first  manifesta- 
tions, of  course,  are  in  sexual  relations  and  the  care  and  pro- 
tection of  the  young,  but  in  varying  forms  and  degrees  of  mani- 
festation it  has  run  parallel  from  the  beginning  with  the  struggle 
for  personal  and  individual  life.  The  highest  expression  of  these 
two  motives  or  impulses;  the  egoistic  and  the  altruistic,  working 
in  harmonious  co-ordination  to  accomplish  a  good  life,  is  formu- 
lated in  the  "Golden  Rule" :  "Thou  shalt  love  they  neighbor  as 
thyself,"  and  is  as  scientific  as  it  is  Christian. 

The  close  relations  of  men  in  modern  society  and  the  vast 
and  exceedingly  complex  machinery  of  social,  industrial  and 
political  affairs,  imposing  upon  every  one  such  numberless  and 
varied  duties  corresponding  to  the  rights  and  the  needs  of  others, 
and  making  needful  so  many  limitations  and  restraints  upon  the 
exercise  of  individual  freedom  and  the  indulgence  of  natural 
impulses,  is  a  comparatively  recent  development  or  evolution  of 
that  portion  of  the  human  race  to  which  we  belong,  and  men 
are  yet  very  far  from  the  completion  of  their  adaptation  to  this 
new  environment.  In  fact,  there  is  nothing  upon  which  all  men 
and  women  are  so  well  agreed  as  on  the  proposition  that  very 
many  things  in  social  life  and  relations,  in  the  conduct  of  business 
and  manufacturing,  in  the  management  of  political  parties  and 
the  administration  of  government,  the  education  of  children  and 
youth,  and  the  practice,  if  not  the  creeds,  of  religion,  are  in  need 
of  improvement.  When  it  comes  to  particular  plans  for  improve- 
ment, the  agreement  ceases,  but  whenever  there  is  a  general 
agreement  that  some  particular  thing  can  be  improved  by  some 
definite  method,  there  is  immediate  hope  and  usually  speedy 
accomplishment  of  some  real  progress. 

Scientific  men  have  long  been  engaged  in  a  patient  investiga- 
tion and  study  of  the  laws  of  God  in  the  physical  world,  with 
the  most  astounding  results  in  the  harnessing  of  the  forces  of 
nature  in  the  service  of  man,  exerting  greater  physical  power 
in  useful  work  than  could  be  done  by  untold  millions  of  human 
hands,  and  by  discovering  and  obeying  the  laws  of  life,  men 
have  been  able  in  the  vegetable  and  animal  world  to  procure  the 
comparatively  rapid  evolution   or  development  of  primitive  or 


DUTY  AND  CONSCIENCE.  .23 

wild  types  into  forms  incomparably  better  suited  to  human  uses. 
This  is  true  conspicuously  of  domestic  animals,  fruits,  vegetables, 
and  grains.  Having  accomplished  so  much  upon  these  lower 
levels,  it  is  reasonable  to  suppose  that  similar  patient  and  sincere 
investigation  may  lead  to  the  discovery  of  the  laws  of  social, 
economic,  moral,  and  spiritual  life,  and  the  forces  and  circum- 
stances that  promote  or  hinder  development,  and  so  the  intelli- 
gence of  men,  by  comprehending  the  Divine  purposes,  and 
methods  of  operation,  may  guide  or  control  human  affairs  in 
accordance  therewith  to  the  accomplishment  of  a  more  rapid 
development  than  the  world  has  heretofore  seen;  for  men  have 
too  often  been  little  better  (as  respects  the  evolution  of  life)  than 
passive  instruments  in  the  grasp  of  Divine  forces,  or  at  best  have 
been  groping  almost  blindly  for  the  path  of  progress,  and  too 
often  at  cross  purposes  with  each  other  and  with  the  Creator. 

That  men  may  understand  the  laws  and  purposes  of  God 
and  actively  co-operate  with  Him  for  their  fulfilment,  is  an  old 
idea  in  the  world  as  applied  to  moral  and  spiritual  life  and  con- 
duct. The  New  Testament  teaches  it  in  direct  terms  in  such 
passages  as  these :  "We  then,  as  workers  together  with  him, 
beseech  you  also  that  ye  receive  not  the  grace  of  God  in  vain." — 
(2  Corinthians  vi-1)  and  "Work  out  your  own  salvation  *  *  * 
for  it  is  God  which  worketh  in  you." — Phil,  ii,  12-13).  It  is 
equally  true  that  men  are  "Workers  together  with  God"  when 
they  discover  and  apply  to  beneficent  uses  the  laws  and  resources 
of  the  physical  world,  the  laws  and  forces  of  vegetable  and  animal 
life  and  development,  or  the  facts,  relations  and  duties  pertaining 
to  economic,  social,  legal,  and  moral  relations  and  duties  of  men. 

Similar  efforts,  by  a  patient  study  of  facts  and  relations, 
with  such  differences  of  methods  as  the  nature  of  the  subjects 
makes  necessary,  are  beginning  to  be  applied  to  the  discovery  of 
the  laws  and  solution  of  the  problems  of  social,  business,  eco- 
nomic, moral  and  spiritual  life.  Let  us  hope  that  in  time  the 
useful  results  may  be  as  astonishing  and  satisfactory  as  they  have 
been  in  the  mechanic  arts,  in  the  practice  of  medicine,  surgery  and 
dentistry,  and  many  other  activities  by  which  the  health,  comfort, 
duration,  and  breadth  and  scope  of  human  lives  have  been  so 
greatly  increased  during  the  last  hundred  years. 


24  SYSTEM  OF  ETHICS. 

The  first  step  in  such  progress,  will  be  a  better  comprehen- 
sion of  the  rights,  and  the  needs  of  men  and  a  moral  quality, 
responsive  to  such  comprehension,  that  will  insure  respect  for 
human  rights,  and  to  the  extent  of  power  and  opportunity,  the 
supply  of  human  needs.  At  the  present  time, — perhaps  it  has 
always  been  so, — the  moral  quality  that  leads  men  to  do  right  is 
lagging  behind  the  comprehension  of  what  is  right.  That  is  to 
say,  a  very  large  number  of  people  are  not  doing  as  well  as  they 
know  how  to  do.  Here,  as  everywhere,  the  difference  between 
good  and  bad  is  fairly  well  understood  by  everybody  in  a  general 
way.  Good  men  are  careful  and  scrupulous  about  the  perform- 
ance of  their  duty,  and  less  strenuous  about  maintaining  their 
rights,  often  yielding  them  rather  than  contend  for  them,  espe- 
cially when  they  judge  that  the  contention  may  do  more -harm  to 
themselves  or  others  than  the  rights  are  worth  in  particular 
instances.  Bad  men,  on  the  other  hand,  are  very  careless  and 
indifferent  about  the  performance  of  their  duties,  but  usually 
very  particular  and  insistent  to  have  their  rights  respected. 

If  the  time  could  come  when  all  men  were  developed  to  the 
greatest  perfection  and  efficiency  which  their  natural  abilities  and 
their  circumstances  in  life  make  possible,  and  these  perfected 
lives  were  exercised  for  the  benefit  of  others  equally  with  them- 
selves, all  rights  would  be  protected,  all  duties  would  be  per- 
formed, all  the  needy  would  be  provided  for,  and  the  "Millen- 
nium" would  be  here. 

Until  then,  all  good  people  must  seek  and  expect  to  give 
more  than  is  due  from  them,  to  help  carry  the  burdens  and 
perform  the  duties  neglected  by  those  who  ought  to  do  them. 
It  is  right  for  a  man  to  use  his  life  for  his  own  perfection  and 
welfare.  It  is  his  duty  to  use  it  for  the  good  of  those  about  him, 
and  since  we  receive  far  more  from  others  than  we  can  do  for 
ourselves,  we  should  do  far  more  for  others  than  for  ourselves, 
and  our  lives  should  be  trained  and  perfected  wtih  chief  reference 
to  making  them  as  efficient  as  possible  in  the  service  of  others. 
Moral  worth  is  impossible  of  attainment  otherwise.  Man  must 
serve  others  if  he  would  ennoble  himself;  he  should  ennoble 
himself  that  he  may  serve  others. 

Although  this  writer  is  more  largely  indebted  to  "Paulsen's 


DUTY  AND  CONSCIENCE.  25 

System  of  Ethics"  than  to  any  other  souce,  it  must  not  be  sup- 
posed that  everything  preceding  has  been  derived  from  Paulsen, 
either  directly  or  indirectly.  Much  less  has  any  attempt  been 
made  to  epitomize  the  contents  of  the  first  four  hundred  and 
seventy  pages  of  Paulsen's  work.  Many  things  of  great  interest 
and  importance  have  been  omitted,  both  respecting  the  historical 
development  of  morality  and  its  fundamental  conceptions  and 
questions  of  principle,  and  for  the  most  part,  conclusions  only 
have  been  stated  without  any  attempt  to  outline  or  reproduce  the 
facts  or  reasons  by  which  he  has  fortified  his  conclusions  or 
opinions.  Many  subjects  have  been  wholly  omitted;  for  instance, 
Paulsen  has  a  whole  chapter  on  the  "Teleological  and  formalistic 
conceptions  of  the  good  and  the  bad."  "The  former  explains  the 
difference  between  good  and  bad  by  the  effects  which  modes  of 
conduct  and  acts  of  will  naturally  produce  upon  the  agent  and 
his  surroundings.  Acts  are  called  good  when  they  tend  to 
preserve  and  promote  human  welfare;  bad,  when  they  tend  to 
disturb  and  destroy  it.  Formalistic  ethics,  on  the  other  hand, 
claims  that  the  concepts  good  and  bad,  taken  in  their  moral  sense, 
designate  an  absolute  quality  of  the  will,  without  any  regard  to 
the  effects  of  acts  or  modes  of  conduct;  that  this  quality  cannot 
be  further  explained,  but  must  be  accepted  as  a  fact."  Paulsen 
advocates  the  teleological  view. 

The  chapter  on  "The  highest  good"  is  a  discussion  of  the 
hedonistic  and  energistic  conceptions.  We  can  only  quote  a 
statement  of  them.  He  says  :  "The  highest  good  of  an  individual 
as  well  as  of  a  society  consists  in  the  perfect  development  and 
exercise  of  life.  This,  of  course,  is  a  purely  formal  definition, 
but  we  cannot  make  it  more  specific.  It  is  as  impossible  to  define 
the  perfect  life  as  it  is  to  define  a  plant  or  animal  species.  We 
can  simply  give  a  description  of  it :  this  it  is  the  business  of  the 
doctrine  of  virtues  and  duties  to  do." 

"Before  giving  a  more  detailed  account  of  this  conception, 
however,  I  deem  it  wise  to  discuss  another  view  of  the  nature  of 
the  highest  good.  An  influential  ethical  school  contends  that 
welfare  or  the  highest  good  does  not  consist  in  the  objective  con- 
tent of  life,  but  in  the  feeling  of  pleasure  which  life  procures; 
that  pleasure  is  the  thing  of  absolute  worth,  and  that  everything 


26  SYSTEM  OF  ETHICS. 

else  has  value  only  in  so  far  as  it  conduces  to  pleasure.  This 
view  is  commonly  called  hedonism;  the  theory  opposed  to  it  we 
have  called  energism." 

Paulsen's  chapter  on  pessimism  opposes  the  views  of  the 
pessimistic  philosophers  who  contend  that  "Life  has  no  value ;  or, 
if  it  contains  valuable  elements,  their  sum  is  so  far  exceeded  by 
the  worthless  ones  that  the  total  value  falls  below  zero,  and 
hence,  it  is  better  not  to  live  than  to  live." 

We  have  no  time  to  spare  for  this  question,  nor  for  his  next 
chapter  on  "The  Evil,  the  Bad,  and  Theodicy"  in  which  he  at- 
tempts to  justify  the  existence  of  evil  in  the  world. 

The  chapter  on  "Duty  and  Conscience"  is  of  more  conse- 
quence to  our  purpose.  There  are  forty  pages  of  it  and  it  is 
difficult  to  discuss  the  matter  briefly  enough  and  impossible  ade- 
quately to  epitomize  his  presentation  of  it. 

THE  ORIGIN  OF  THE  FEELING  OF  DUTY. 

*The  normal  human  will,  whether  of  the  individual  or  of 
society,  "aims  at  the  preservation  and  perfection  of  individual 
and  social  life."  "Here,  however,  we  seem  to  be  confronted  with 
a  contradiction.  Good,  we  may  also  say  in  conformity  with 
popular  usage,  is  not  what  we  will  to  do  but  what  we  ought  to  do. 
To  do  good  means  to  do  our  duty,  and  our  duty  does  not  (always) 
seem  to  coincide  with  the  natural  will;  hence  there  is  a  conflict 
between  duty  and  inclination.  *  *  *  We  call  that  phase  of 
our  nature  which  opposes  inclination  and  manifests  itself  in  the 
feeling  of  obligation  and  duty,  conscience."  He  next  examines 
"the  origin  of  the  feeling  of  duty."  "How  does  obligation  arise 
in  the  willing  being?  Whence  this  conflict  between  natural  incli- 
nation and  duty?  Is  it  something  supernatural,  something  break- 
ing into  the  unity  of  the  willing  being  from  without?"  "Accord- 
ing to  the  religious  view  it  is :  for  it,  conscience,  is  the  voice 
of  God." 

"This  notion  contains  a  germ  of  truth,  but  it  has  no  value  as 
an  explanation.  We  have  no  more  right  to  appeal  to  God  as  the 
cause  in  morals  than  in  physics.  Both  the  natural  law  and  the 
moral  law  may  point  to  something  beyond  them,  to  something 

*Page  340. 


DUTY  AND  CONSCIENCE.  27 

transcendent.  But  we  cannot  assume  the  transcendent  in  order 
to  deduce  from  it  the  facts  of  experience;  we  must  seek  for  the 
explanation  within  the  empirical  world;  and  I  believe  that  we 
can  find  it  there." 

I  would  state  this  a  little  differently,  and  say  that  we  have 
a  perfect  right  "to  appeal  to  God  as  the  cause"  in  both  morals 
and  physics.  By  observation  and  experience,  by  the  collection 
of  numberless  facts  and  the  making  of  countless  experiments ; 
by  the  patient  construction  of  theories  and  formulation  of  laws 
which  correspond  to  and  are  consistent  with  the  observations, 
experiences,  facts  and  experiments,  men  have  learned  very  much 
about  the  will  and  laws  of  God  as  exerted  and  illustrated  in  the 
material  world  and  in  physical  life.  And  it  does  not  seem  unrea- 
sonable that  observation  and  experience,  the  recording  of  facts 
in  sufficient  numbers,  the  making  of  experiments,  and  the  formu- 
lation of  theories  and  laws  that  correspond  to  all  these,  may 
teach  us  very  much  respecting  the  will  and  laws  of  God  as 
exerted  and  illustrated  in  the  development  of  moral  and  spiritual 
powers  in  men  and  their  manifestations  in  life  and  conduct.  It 
would  be  as  great  a  mistake,  and  one  of  similar  kind  to  suppose 
that  a  supernatural  revelation  is  the  only  way  in  which  we  can 
find  out  anything  about  the  laws  of  God  governing  the  moral 
conduct  of  men,  as  to  suppose  that  such  a  revelation  is  the  only 
way  in  which  we  can  find  out  the  law  of  God  respecting  the 
atomic  weight  of  oxygen. 

THE   AUTHORITY   OF   DUTY. 

Paulsen  says :  *"The  authority  of  duty  springs  from  the 
relation  of  the  will  to  custom,  or,  what  amounts  to  the  same,  of 
the  individual  to  society."  "By  the  term  'custom'  I  mean  the  acts 
performed  by  all  the  members  of  a  tribe,  which  correspond  to 
the  instincts  of  animals.  The  actions  of  animals  are  governed 
by  three  principles :  impulse,  instinct,  and  individual  experience. 
Impulse  regulates  the  vegetative  animal  functions — nutrition, 
respiration,  reproduction.  The  term  instinct  is  applied  to  uniform 
modes  of  behavior  which  solve  more  complicated  problems  of 
animal  life,  like  nest-building,  migration,   etc.     *     *     *     They 

*Page  343. 


28  SYSTEM  OF  ETHICS. 

are  transmitted  by  heredity,  and  practised  without  knowledge  of 
their  purposiveness.  They  have  been  characterized  as  the  organic 
intelligence  of  the  species.  In  addition  to  these,  the  animal  also 
acquires  a  small  measure  of  individual  intelligence  through  its 
own  experience." 

"The  same  three  principles  again  meet  us  in  man.  The 
instincts  undergo  the  most  peculiar  transformation, — they  ap- 
pear as  customs.  The  latter  resemble  the  instincts  in  that  they 
are  stereotyped  modes  of  conduct  for  the  teleological  solution 
of  complicated  life  problems  as  well  as  in  that  they  are  followed 
without  a  knowledge  of  their  purposiveness :  they  represent  the 
intelligence  of  the  race,  in  which  the  individual  participates.  But 
they  differ  from  instinct ;  the  individual  knows  of  them;  in  obey- 
ing them,  however,  he  is  not  conscious  of  their  purposiveness, 
but  of  their  existence  and  obligation.  He  insists  upon  their 
observance  by  others  as  well  as  by  himself,  formulating  them 
into  those  universal  rules  which  begin  with  a  "thou  shalt"  or 
"thou  shalt  not."  We  may  therefore  define  customs  as  instincts 
that  have  become  conscious  of  themselves.  The  difference  is, 
that  customs  are  not,  like  instincts,  inherited  organically  as  nat- 
ural characteristics,  but  transmitted  by  conscious  activity,  through 
education.  Moreover,  customs  are  upheld  by  the  conscious  action 
of  the  community:  an  animal  that  does  not  obey  its  instincts  is 
left  to  suffer  the  natural  consequences  of  its  behavior;  a  man 
who  acts  contrary  to  custom  causes  a  reaction  in  his  surroundings, 
which  may  assume  many  forms,  all  the  way  from  a  scarcely  per- 
ceptible form  of  disapproval  to  extermination." 

We  have  not  space  for  Paulsen's  illustrative  examples.  He 
goes  on  to  say:  "We  can  now  understand  why  duty  does  not 
appear  to  be  rooted  in  the  will  of  the  individual,  but  seems  to  be 
something  external  to  him,  something  opposing  him  with  absolute 
authority.  Custom  forms  the  original  content  of  duty.  In  the 
higher  stages  of  development  the  relation  between  duty  and 
custom  changes;  duty  gradually  assumes  a  more  personal  and 
individual  character.  But,  originally,  duty  enjoined  a  life  in 
acordance  with  custom.  *  *  *  Hence  we  may  say:  Duty  is 
invested  with  the  authority  of  custom. '  In  it,  the  will  of  parents 
and  educators,   the   will   of   ancestors,   the   will   of   the  people. 


DUTY  AND  CONSCIENCE.  29 

speak  to  the  individual  will.  To  these  highest  human  authorities, 
a  still  higher  and  final  authority,  the  authority  of  the  gods"  (or 
God),  "is  invariably  added.  *  *  *  ^g  religion  develops,  they 
uniformly  become  the  guardians  of  custom  and  law.  This  triple 
authority  of  parents,  people,  and  gods,  reveals  itself  in  the  sense 
of  duty :  it  is  a  feeling  of  obHgation  to  a  higher  will,  which  sets 
a  limit  to  the  inclinations.  To  be  sure,  this  higher  will  is  not 
supra-powerful,  like  one  governing  by  force  or  fear ;  it  is  acknowl- 
edged internally  by  the  individual  will  as  one  having  absolute 
right  to  command." 

^RELATION  BETWEEN  DUTY  AND  INCLINATION. 

*  *  *  "Custom  as  such  aims  at  the  preservation  and  wel- 
fare of  the  collective  body.  *  *  *  \Ye  may  also  say  that 
custom  aims  at  the  preservation  and  welfare  of  the  individual. 
And  in  so  far  as  the  individual  desires  the  preservation  and 
welfare  of  his  own  life,  he  desires  exactly  what  custom  desires. 
Indeed,  he  cannot  realze  his  welfare  except  as  custom  prescribes, 
— on  the  one  hand,  because  this  is  the  most  appropriate  means 
of  solving  a  particular  problem  of  life, — on  the  other,  because 
departures  from  custom  would  produce  a  conflict  between  him 
and  the  world,  which  would  necessarily  react  unfavorably  upon 
his  individual  welfare.  Hence,  custom  and  the  individual  will, 
duty,  and  inclination,  really  affect  conduct  in  the  same  way. 
Conflicts  between  the  two  are  accidental  and  exceptional.  *  *  * 
But  how  does  it  happen  that  duty  and  inclination  oppose  each 
other  in  consciousness,  if  not  uniformly,  at  least  frequently? 
I  believe  this  may  be  explained  as  follows :  The  individual 
becomes  clearly  conscious  of  custom"  (or  duty)  "only  when  his 
inclinations  are  directed  towards  something  contrary  to  it.  So 
long  as  they  conform  to  custom"  (or  duty),  "conscience  has 
nothing  to  say  to  him.  *  *  *  it  may  therefore  be  said  that 
duty  uniformly  arises  as  a  limitation  of  impulses,  whose  existence 
it  presupposes ;  without  impulses  there  would  be  no  duty.  It  is 
in  its  origin  essentially  negative :  Thou  shalt  not  is  the  formula 
with  which  custom,  law,  duty,  originally  oppose  the  individual 
when  his  impulses  go  too  far.     The  positive  formula  does  not 

*Page  346. 


30  SYSTEM  OF  ETHICS. 

read:  Thou  shalt,  but:  I  will.  Only  when  the  natural  impulse 
or  will  is  lacking,  does  the  formula  of  duty  make  its  appearance, 
and  change  the :  I  will,  into  the :  Thou  shalt."    *     *    * 

CRITIQUE  OF  THE  KANTIAN  VIEW. 

"According  to  Kant,  the  conflict  between  inclination  and  the 
feeling  of  duty  is  essential  to  morality.  An  act,  in  his  opinion, 
has  moral  worth  only  when  the  feeling  of  duty  determines  the 
will,  in  the  absence  of  all  inclinations  or  in  spite  of  them.  Hence, 
he  does  not  regard  it  as  meritorious  to  do  good  from  inclination. 
*  *  *  This  view  of  Kant's  called  forth  the  ridicule  of  Schil- 
ler's well-known  lines :  'Gladly  I  serve  my  friends,  but  alas !  I  do 
it  from  inclination,  hence  I  am  plagued  with  the  doubt  that  I  am 
not  virtuous'  (translation)  whereupon  he  receives  the  following 
advice :  'Your  only  resource  is  to  try  to  despise  them,  and  then  to 
do  with  aversion  that  which  duty  enjoins  upon  you'  (translation). 
This  ridicule,  we  must  confess,  is  not  undeserved.  According  to 
Kant's  theory,  a  man's  worth  depends  entirely  upon  his  ability 
to  eliminate  inclinations  and  impulses  from  his  will,  and  to 
determine  it  solely  by  the  feeling  of  duty.  Such  a  human  being, 
doing  his  duty  solely  for  duty's  sake,  is  the  most  wooden  manikin 
ever  constructed  by  a  system  builder.  Nevertheless,  there  is  a 
germ  of  truth  in  the  view.  The  conflict  between  duty  and  in- 
clination is  not  the  rule,  and  the  suppression  of  inclination  by 
the  feeling  of  duty  is  not  the  condition  of  all  moral  worth.  Still, 
we  may  say  that  the  true  moral  character  is  plainly  revealed  in 
such  a  conflict." 

I  believe  the  true  view  is  almost  the  oposite  of  Kant's ; 
namely :  that  the  best  moral  quality  is  attained  by  the  education, 
the  restraint,  and  the  exercise  of  inclinations  and  impulses  in 
such  a  way  that  the  conflicts  between  inclination  and  duty  become 
less  and  less  frequent  and  finally  cease  altogether.  (Which 
means  by  the  formation  of  good  habits  of  thought  and  conduct. ) 

"The  feeling  of  duty  may  have  prevented  much  evil  in  the 
world,  but  the  beautiful  and  the  good  have  never  sprung  from 
the  feeling  of  duty,  but  from  the  living  impulses  of  the  heart." 

*"Let  me  add  a  remark  concerning  a  few  other  errors  of 


*Paulsen.    Page  3.55. 


DUTY  AND  CONSCIENCE.  31 

the  a-prioristic-intuitionalistic  moral  philosophy.  It  asserts  that 
the  laws  of  duty  are  axiomatic  formulae,  which  are  recognized 
with  immediate  and  intuitive  certainty,  like  the  mathematical 
axioms.  We  shall  have  to  concede  that  the  moral  laws  are  imme- 
diately and  universally  recognized  as  valid  propositions.  They 
are  nothing  but  the  positive  or  negative  expressions  of  custom, 
and  every  member  of  the  community  is  conscious  of  cutsom,  if 
he  has  any  part  in  the  life  of  the  community.  He  knows  of 
custom  through  the  countless  particular  judgments  by  which 
others  and  he  himself  have  approved  and  disapproved  of  acts; 
the  certainty  with  which  he  immediately  decides  in  individual 
cases  depends  upon  practice.  *  *  *  Finally,  it  is  no  less 
certain  that  the  moral  laws  arise  in  consciousness  as  "categorical 
imperatives."  *  *  *  So  far,  therefore,  intuitional  ethics 
asserts  facts  which  cannot  be  doubted.  But  it  is  in  error  when 
it  goes  on  to  claim  that  these  imperatives  are  objectively  ground- 
less, and  that  the  sole  business  of  ethics  consists  in  systematizing 
the  particular  commandments  and  prohibitions.  *  *  *  There 
is  unquestionably  an  objective  ground  for  the  existence  and 
validity  of  the  moral  laws,  which  appear  in  consciousness  in  the 
form  of  absolute  comands  and  prohibitions ;  their  observance  is 
the  condition  of  the  welfare  of  the  individual  and  the  species. 
And  it  is  the  business  of  moral  philosophy  to  discover  this  ground, 
just  as  it  is  the  business  of  a  philosophy  of  law  *  *  *  to 
prove  its  teleogical  necessity  by  indicating  the  problems  of 
human  collective  life  which  it  solves." 

^"Another  error  to  which  intuitional  ethics  inclines,  is  the 
error  that  conscience  invariably  reveals  to  everybody,  with 
subjective  certainty  and  objective  infallibility,  what  duty  de- 
mands. Thus  Kant  contends  that  'the  commonest  intelligence 
can  easily  and  without  hesitation  see,'  what  the  moral  law  re- 
quires to  be  done;  or,  'what  duty  is,  is  plain  of  itself  to  every- 
one ;  but  what  is  to  bring  true  durable  advantage,  such  as  will 
extend  to  the  whole  of  one's  existence,  is  always  veiled  in  im- 
penetrable obscurity.'  The  latter  statement  is  certainly  true ; 
but  it  is  certainly  not  true  that  no  one  is  ever  in  doubt  as  to 
what  duty  demands.  In  many  cases,  of  course,  our  duty  seems 
perfectly  clear  immediately,  but  by  no  means  in  all." 

*Paiilsen,  page  357. 


32  SYSTEM  OF  ETHICS. 

It  is  just  here,  in  the  determination  of  what  duty  requires, 
by  a  careful  consideration  of  all  the  circumstances  within  our 
knowledge,  and  their  relations  to  our  ideal  of  life  and  conduct, 
that  conscientious  and  rightminded  people  encounter  their 
greatest  difficulties,  make  their  successes  or  failures  and  show 
their  wisdom  or  their  foolishness.  "But,"  it  may  be  retorted, 
"this  makes  all  moral  questions  uncertain,  and  subjects  them 
to  unbridled  casuistry.  I  do  not  believe  it  makes  them  un- 
certain; they  are  uncertain,  and  will  always  remain  so.  The 
matter  is  really  not  so  simple  as  those  imagine  who  hold  that 
an  innate  power,  called  practical  reason,  or  conscience,  infal- 
libly regulates  a  man's  conduct  by  subsuming  each  case  under 
a  general  rule.  The  problem  surely  does  not  consist  merely 
in  deciding  given  cases  according  to  a   ready-made  formula." 

It  is  not  necessary  to  repeat  Paulsen's  discussions  and  il- 
lustrations under  this  head.  To  feel  doubtful  and  uncertain 
as  to  what  duty  requires,  or  as  to  which  of  several  alternative 
courses  of  conduct  we  ought  to  follow,  is  a  not  very  uncom- 
mon experience  in  the  lives  of  most  thoughtful  and  conscien- 
tious persons. 

CONSCIENCE. 

"We  defined  conscience  as  the  consciousness  of  custom  or  the 
existence  of  custom  in  the  consciousness  of  the  individual.  The 
authority  with  which  it  speaks  is  the  authority  of  all  those  who 
support  and  protect  custom  and  law  against  the  particular  devi- 
ating will :  first,  the  authority  of  parents  and  teachers,  who  impress 
custom  or  objective  morality  upon  the  soul  of  the  child;  then,  the 
authority  of  the  wider  circles,  which  pronounce  judgment  upon  the 
conduct  of  the  individual  by  the  bestowal  of  praise  and  blame, 
honor  and  disgrace ;  further,  the  authority  of  the  law  and  the  mag- 
istracy, which  deters  the  offender  by  threats  and  punishments; 
finally,  the  authority  of  the  gods,  which  surrounds  custom 
and  law  with  religious  awe.  The  individual  compares  his  con- 
duct with  the  standard  thus  sanctioned  and  protected,  and 
regulates  his  individual  will  according  to  the  universal  will, 
which,  after  all,  is  his  own  general  or  fundamental  will. 
Hence,  arise  those  emotions  which  are  experienced  before  the 
deed  as  the  deterrent  or  impelling  conscience,  and  after  the 


DUTY  AND  CONSCIENCE.  33 

deed,  as  remorse  or  moral  satisfaction.  The  content  of  con- 
science is  varied,  as  varied  as  the  customs  themselves,  which 
the  different  tribes  and  nations  evolve  according  to  their  dif- 
ferent natures  and  different  conditions  of  life.  The  form,  how- 
ever, is  universally  the  same:  a  knowledge  of  a  higher  will 
by  which  the  individual  will  feels  itself  internally  bound.  This 
higher  will,  is,  in  the  last  analysis,  universally  regarded  as  the 
will  of  a  superhuman,  of  a  divine  power." 

"Those  who  interpret  conscience  as  a  voice  from  above, 
and  regard  their  conception  as  an  explanation  of  its  origin, 
reject  the  historical  psychological  explanation,  not  only  as  an 
unsatisfactory,  but  even  dangerous  theory;  supposing  it  robs 
conscience  of  its  sanctity,  and  hence  also  destroys  its  efficacy. 
*  *  *  I  cannot  share  this  view.  It  does  not  seem  to  me 
that  the  loss  of  authority,  of  conscience,  is  either  a  logical  con- 
sequence or  a  necessary  psychological  effect  of  the  anthropolog- 
ical explanation.  *  *  *  Why  should  the  moral  laws  lose 
their  validity  because  we  are  convinced  that  they  express  the 
experience  gradually  acquired  by  the  race  in  regard  to  what 
is  wholesome  and  harmful?  On  the  contrary,  what  stronger 
proof  can  we  desire  than  the  hereditary  wisdom  of  a  people? 
In  conscience,  we  have  the  subjective  reflex  of  the  objective 
natural  order  of  moral  life,  as  it  has  developed  in  custom  and 
law ;  surely,  this  knowledge  cannot  destroy  the  validity  or  the 
teleological  necessity  of  the  order.  *  *  *  Here  let  me 
simply  say  that  in  my  opinion,  the  time  will  never  come  w^hen 
men  will  cease  to  regard  the  morality  and  holiness  which  they 
have  evolved  from  their  innermost  being,  as  derived  from  the 
essence  of  God  or  the  nature  of  the  All-Real.  How  could  these 
enter  into  the  heart  of  man  were  they  not  rooted  in  the  very 
nature  of  things?  Is  man  an  anomaly  in  the  universe?  *  *  * 
Moral  laws  are  not  the  accidental  injunctions  of  an  arbitrary 
being,  but  are  inherent  in  the  nature  of  things,  in  the  nature 
of  man.  So  teleological  ethics  conceives  them ;  and  conscience, 
it  conceives  as  the  reflection  of  the  objective  uniformity  of 
moral  life  in  the  consciousness  of  the  individual.  Hence,  it 
regards  conscience  as  a  highly  important  organ  for  preserv- 
ing life,  which  cannot  be  destroyed  by  speculations  concern- 


34  SYSTEM  OF  ETHICS. 

ing  its  origin;  any  more  than  the  value  of  language  can  be  im- 
paired by  abandoning  the  old  superstitions  which  explained  it 
as  a  direct  communication  from  heaven.  *Or  do  the  rules  of 
grammar  lose  their  validity  as  soon  as  we  become  convinced 
that  they  originated  in  a  human  way?  Well,  then,  neither 
will  the  moral  laws  lose  their  validity.  Whoever  desires  to 
participate  in  the  intellectual  life  of  his  people  must  speak 
their  language  and  obey  their  laws ;  whoever  desires  to  par- 
ticipate in  their  moral  life,  must  follow  their  customs  and  obey 
the  dictates  of  his  conscience."     *     *     * 

"As  Sidgwick  admirably  says :  'For  though  the  imperfec- 
tion that  we  find  in  all  the  actual  conditions  of  human  exist- 
ence, is  ultimately  found  even  in  morality  itself,  still,  prac- 
tically, we  are  much  less  concerned  with  correcting  and  im- 
proving than  we  are  with  realizing  and  enforcing  it.  The 
Utilitarian  must  repudiate  altogether  the  temper  of  rebellion 
against  established  morality,  as  something  purely  external  and 
conventional.  *  *  *  He  must,  of  course,  also  repudiate  as 
superstitious,  that  awe  of  it  as  an  absolute  or  divine  code 
which  intuitional  moralists  inculate.  Still,  he  will  naturally 
contemplate  it  with  reverence  and  wonder,  as  a  marvelous 
product  of  nature,  the  result  of  long  centuries  of  growth,  show- 
ing in  many  parts  the  same  fine  adaptation  of  means  to  com- 
plex exigencies  as  the  most  elaborate  structures  of  physical 
organisms  exhibit:  he  will  handle  it  with  respectful  delicacy 
as  a  mechanism,  constructed  of  the  fluid  element  of  opinions 
and  dispositions ;  by  the  indispensable  aid  of  which  the  actual 
quantum  of  human  happiness  is  being  produced ;  a  mechanism 
which  no  politicians  or  philosophers  could  create,  yet  without 
which  the  harder  and  coarser  machinery  of  positive  law  could 
not  be  permanently  maintained,  and  the  life  of  man  would 
become — as  Hobbes  forcibly  expresses  it — 'solitary,  poor, 
nasty,  brutish,  and  short.'  " 

INDIVIDUALIZATION  OF  CONSCIENCE. 

"Conscience  is  originally  the  manifestation  of  custom  or  ob- 
jective morality  in  the  consciousness  of  the  individual;  it  acts 

*Page  367. 


DUTY  AND  CONSCIENCE.  35 

essentially  as  an  inhibition  of  particular  will  impulses  which 
deviate  from  the  normal.  But  this  is  not  its  iinal  and  highest 
form.  It  exercises  a  more  positive  function  in  that  it  reflects  an 
ideal  of  the  perfect  life.  *  *  *  *In  its  religious  and  poetical 
creations  every  nation  produces  concrete  images  of  perfection; 
these  take  possession  of  the  consciousness  of  the  individual,  and 
fashion  his  nature  and  will.  He  measures  himself  and  his  con- 
duct by  the  ideal.  *  *  *  Conscience  thus  acquires  a  new 
meaning ;  *  *  *  now  it  measures  the  actual  life  by  its  special 
ideal.  *  *  *  This  will  not  be  unrelated  to  custom;  still  it 
may  differ  widely  from  the  universal  conception  and  mode  of 
life,  so  widely,  indeed,  that  it  may  even  bring  the  person  into 
conflict  with  custom,  and  that  this  conflict  may  not  arouse  pangs 
of  conscience,  but  be  recognized  as  a  moral  necessity.  Objective 
morality  is  now  opposed  by  a  subjective  morality,  a  higher  form, 
which  applies  a  new  standard  to  things." 

"Whenever  the  personality  whose  individual  ideal  brings 
it  into  antagonism  with  the  objective  morality  of  the  times, 
and  leads  to  a  recasting  of  moral  values,  is  endowed  with  re- 
markable powers  of  intellect  and  will,  those  conflicts  arise 
which  form  the  dramatic  climaxes  in  history.  The  real  heroes 
of  mankind  have  fought  such  battles.  They  rebel  against  the 
conventional  values,  against  the  ideals,  which  have  become 
useless  and  false,  against  sham  and  falsehood,  against  the  salt 
that  has  lost  its  savor.  They  preach  new  truth,  point  out  new 
aims  and  new  ideals,  which  instill  new  life  into  the  soul  and 
raise  it  to  a  higher  plane.  Jesus  fought  this  fight.  He  rose 
above  the  religion  and  the  customs  of  his  nation ;  he  conceived 
of  a  different  and  higher  relation  to  God  than  that  recognized 
by  his  people;  and  hence,  he  was  not  satisfied  with  the  right- 
eousness of  his  people,  with  their  punctilious  and  yet  scant 
and  self-sufiicient  fulfillment  of  the  law.  So  he  placed  himself 
and  his  disciples  outside  of  the  law  of  his  people ;  he  broke  the 
Sabbath,  he  did  not  fast;  he  gave  them,  instead,  a  new  com- 
mandment :  "Love  ye  one  another."  And  the  established  sys- 
tem, the  objective  righteousness,  protested  against  the  revolt, 
he  entered  upon  the  struggle  of  annihilation  which  ended  in 
his  death.     What  sustained  him  in  his  battles  and  sufferings 

*Page  369. 


36  SYSTEM  OF  ETHICS. 

and  led  him  to  victory  was  his  firm  conviction  that  he  was 
sent  by  the  Father  to  proclaim  the  new  kingdom  of  love  and 
mercy.  'My  meat  is  to  do  the  will  of  him  that  sent  me.'  Thus 
Jesus  has  become  the  eternal  prototype  of  all  those  who  are 
thirsting  after  and  battling  for  the  kingdom  of  God,  for  truth 
and  justice,  of  all  those  for  whom  life,  as  they  find  it,  has  too 
little  force  and  spirituality, — too  little  love  and  freedom, — of 
all  those  who  from  the  fullness  of  their  hearts  reveal  their  feel- 
ings and  thoughts,  and  are  then  crucified  and  burned  by  the 
rabble,  high  and  low." 

Paulsen  has  two  additional  heads  in  his  chapter  on  duty 
and  conscience.  Moral  Nihilism ;  and  the  answers  to  some 
questions  suggested  by  the  notion  of  duty.  It  does  not  seem 
necessary  to  our  purpose  to  enter  into  the  discussion  of  either 
of  them. 

The  individualized  conscience,  described  by  Paulsen  in 
the  preceding  quotations,  is  the  strongest  force  in  the  world 
to  promote  the  moral  and  spiritual  evolution  of  the  human 
race.  Some  ideal  of  character  and  conduct  is  clearly  perceived 
or  imagined,  and  henceforth  the  person  endeavors,  more  or 
less  steadily  and  consistently,  to  bring  life  and  conduct  into 
conformity  with  the  ideal,  and  to  persuade  others  to  adopt 
and  to  strive  after  similar  ideals.  He  is  no  longer  content  to 
measure  himself  for  approval  or  censure  against  the  average 
conscience,  as  indicated  by  the  customs  and  expressed  opinions 
of  the  society  in  which  he  lives.  On  the  contrary,  he  measures 
the  customary  conduct  and  standards  of  life  by  his  own  ideal. 
It  is  true  that  mistakes  are  sometimes  made  and  some  adopt 
a  personal  ideal  that  is  worse  instead  of  better  than  the  aver- 
age life  and  conscience  of  the  community  in  which  they  live, 
but  this  opportunity  is  inevitable,  for  the  plasticity  and  free- 
dom of  life  which  make  development  and  growth  possible 
must  also  allow  the  possibility  of  degeneracy  and  even  de- 
struction. 

The  individualization  of  conscience  and  the  setting  up  of 
ideals  and  standards  for  one's  self  therefore  calls  for  greater 
wisdom,  self  control  and  courage,  than  simply  to  adopt  the 
conscience  and  standards  of  living  prevalent  in  the  society 
in  which  one  finds  himself. 


CHAPTER  III. 

EGOISM    AND    ALTRUISM,    VIRTUE    AND    HAPPINESS,    MORALITY    AND 
RELIGION,    FREEDOM   OF  THE  WILL. 


*"Acts  are  called  egoistic  when  their  motive  is  individual 
weal  or  woe, — altruistic,  when  their  motive  is  the  weal  and 
woe  of  others.  Some  moralists  regard  these  motives  as  mu- 
tually exclusive,  and  contend  that  every  act  is  the  product  of 
either  egoistic  or  altruistic  motives."     *     *     * 

"This  view  gives  rise  to  two  opposing  schools.  Pure  altru- 
ism sets  up  the  principle :  Acts  have  moral  worth  only  in  so 
far  as  they  are  determined  by  purely  altruistic  motives.  Pure 
egoism  asserts :  It  is  not  only  allowable  but  morally  neces- 
sary to  make  individual  welfare  the  sole  end  of  action." 

The  discussion  or  controversy  between  these  two  schools 
appears  to  be  a  waste  of  time,  for  actions  are  never  purely 
altruistic  or  egoistic,  and  it  is  doubtful  if  motives  ever  are, 
though  they  may  sometimes  nearly  approach  it.  Paulsen  is 
undoubtedly  correct  when  he  says : 

*'Tt  is  as  impossible  to  distinguish  absolutely  between 
egoistic  and  altruistic  acts  on  the  ground  of  their  motives  as 
it  is  to  separate  them  according  to  their  efifects.  Indeed,  it  is 
a  somewhat  curious  notion,  this  notion  that  every  act  must 
have  one  motive.  Nay,  just  as  many  causes  cooperate  in  the 
physical  world  to  produce  a  movement,  so  many  motives  work 
together  to  determine  the  will.*  *  *  *  jg  t^g  antithesis  be- 
tween egoism  and   altruism   therefore   meaningless?"     *     *     * 

"I  do  not,  of  course,  claim  that.  Cases  unquestionably 
arise,  in  which  individual  interests  conflict,  or  seem  to  con- 
flict, with  foreign  interests.  Acts  doubtless  occur  in  which 
the  individual  seeks  his  own  advantage  at  the  expense  of 
others'  welfare  and  conversely,  there  are  acts  in  which  indi- 
vidual interests  and  inclinations  are  sacrificed  for  the  welfare 


*Page  379. 
*Page  386. 


38  SYSTEM  OF  ETHICS. 

of  others,  from  which  it  does  not  necessarily  follow  that  in- 
dividual welfare,  if  we  take  the  word  in  its  profoundest  mean- 
ing, is  promoted  in  the  former  instance  and  retarded  in  the 
latter.  And  it  cannot  be  disputed  that  these  facts  have  great 
moral  significance.  The  above  reflections  simply  desire  to 
show  that  the  opposition  between  individual  and  general  wel- 
fare, selfish  and  altruistic  motives,  is  not  the  rule,  but  the 
exception.  As  a  rule,  there  is  harmony  in  the  effects  as  well 
as  the  motives.  Life  is  not  such  an  antagonistic  affair  as 
some  moralists  make  it  appear :  it  is  not  one  constant  struggle 
between  mine  and  thine.  No  human  life,  perhaps,  is  wholly 
free  from  conflict,  but  there  are  many  lives  in  which  it  plays 
no  prominent  part.  Persons  who  enjoy  healthy  domestic  rela- 
tions and  live  in  well-regulated  communities,  and  pursue  hon- 
orable and  regular  callings,  do  not  experience  many  such  con- 
flicts, nor  do  they  by  any  means  believe  that  the  altruistic 
settlement  of  such  conflicts  forms  the  essential  content  of  their 
life  and  determines  its  moral  worth." 

A  rather  important  aspect  of  this  question  seems  to  be  that 
unless  there  has  been  enough  of  egoism  to  develop  a  personality 
having  strength,  wisdom,  and  moral  and  spiritual  excellence, 
altruistic  motives  and  conduct  will  be  impossible  since  there 
will  be  no  effective  personality  to  exhibit  them,  and  it  is  really 
the  surplus  power  and  resources  left  over  in  the  development  of 
the  person  that  can  be  used  for  altruistic  ends.  There  are  two 
important  practical  aspects  of  the  matter :  First,  in  a  very  large 
proportion  of  the  motives  and  conduct  of  life,  there  is  no  conflict 
between  egoism  and  altruism :  what  is  good  for  others  is  good 
for  myself.  Second,  when  there  is  conflict  between  one's  own 
interests  and  those  of  others,  the  greater  or  more  important  in- 
terest or  welfare  should  decide.  We  are  not  always  called  upon 
to  weigh  and  measure  with  cold-blooded  indifference  and  disin- 
terestedness the  value  of  the  various  interests  to  be  considered, 
though  even  this  may  sometimes  be  desirable. 

The  motive  power  for  altruistic  actions  is  in  the  feelings  and 
sentiments  of  affection,  pity,  justice,  kindness,  philanthropy, 
patriotism,  etc.,  and  usually  it  is  the  interests  and  welfare  of 
those  nearest  to  us  that  must  take  precedence,  especially  those 


VIRTUE  AND  HAPPINESS.  39 

whom  it  is  generally  understood  to  be  our  duty  to  provide  for 
and  who  are  likely  to  be  neglected  if  we  do  not.  Doubtless,  there 
have  been  instances,  however,  in  which  a  service  has  been  ren- 
dered for  more  remote  interests  of  such  commanding  importance 
and  value  as  to  justify  the  neglect  of  interests  near  at  hand,  that 
should  ordinarily  be  of  first  importance,  even  such  as  a  provision 
for  one's  wife  and  children. 

VIRTUE  AND  HAPPINESS. 

*Paulsen's  seventh  chapter,  on  "Virtue  and  Happiness,"  pro- 
poses two  questions:  "(1)  What  influence  has  virtue  upon 
happiness?    (2)  What  is  the  effect  of  happiness  upon  character?" 

"First.  The  first  great  and  fundamental  truth  to  which  all 
peoples  have  been  led  in  their  reflections  upon  moral  matters  is 
the  truth  that  the  good  man  fares  well  and  the  wicked  man  ill. 
This  conviction,  which  represents  the  experiences  of  the  race,  is 
expressed  in  countless  proverbs.  *  *  *  The  theoretical  devel- 
opment of  this  thought  forms  the  content  of  Greek  moral 
philosophy.  Virtue  and  happiness  are  connected,  not  merely 
accidentally,  through  the  mediation  of  the  gods,  but  in  the  very 
nature  of  things.  The  conception  of  happiness,  however,  is 
spiritualized ;  not  external  happiness  or  good  fortune,  but  internal 
happiness,  peace  and  repose  of  spirit,  is  directly  joined  with  the 
exercise  of  virtue,  or  follows  as  its  necessary  effect.  External 
welfare  does  not  always  fall  to  the  lot  of  the  wise  and  virtuous 
man;  but  virtue  tends  to  realize  this  also;  and  in  case  he  does 
not  obtain  it,  he  is  sure  of  finding  happiness  in  his  own  heart. 
This  is  also  the  prevailing  sentiment  in  modern  ethics.  Hobbs 
and  Spinoza,  Leibniz,  and  Wolff,  Shaftesbury  and  Hume,  all 
attempt  to  point  out  the  necessary  connection  between  righteous- 
ness and  welfare.  *  *  *  Virtue,  welfare,  honor,  and  inner 
peace  go  together  as  well  as  vice,  misery,  disgrace,  and  inner 
discord.  This  is  especially  true  of  the  two  extremes :  virtue  and 
inner  peace,  vice  and  inner  discord.  The  two  middle  terms  of 
the  series  are  not  so  constant." 

"A  pessimistic  conception  runs  parallel  with  this  view  of 
the  relation  of  virtue  and  happiness  which  may  be  called  the 

*Page  400. 


40  SYSTEM  OF  ETHICS. 

Optimistic  view."  According  to  this  view  "The  evil  doer  is  the 
very  one  who  fares  well;  fortune  favors  him;  while  the  good 
man  fares  ill.*  *  *  *Strategy  and  violence,  the  latter  against 
the  weaker,  the  former  against  the  stronger,  are  the  means  by 
which  men  rise  and  maintain  themselves."     *     *     * 

"Which  of  these  two  views  is  the  correct  one?  Is  the  truth 
of  the  first  overthrown  by  that  of  the  second?  I  do  not  think 
so.  The  sporadic  pessimistic  moods  which  now  and  then  take 
possession  of  every  nation  and  every  individual,  may  perhaps 
be  explained  as  follows,  and  reconciled  with  the  optimistic  view. 
It  is,  of  course,  an  undeniable  fact  that  the  good  do  not  always 
fare  well  outwardly.  A  man  may  become  sick,  even  though  he 
is  temperate  and  prudent,  and,  conversely,  a  man  who  has  no 
regard  for  his  health  may  remain  hale  and  hearty.  An  able  and 
honest  man  may  fail  in  spite  of  all  his  exertions,  and  a  scoundrel 
may  accumulate  wealth  by  dishonest  means.  *  *  *  But  the 
very  fact  that  such  occurrences  attract  so  much  attention  and 
arouse  such  indignation  seems  to  indicate  that  they  are  not  the 
rule  but  the  exception.  *  *  *  These  cases  would  not  cause 
such  excitement  if  they  were  not  contrary  to  the  nature  of  things. 
It  is  the  rule  that  honest  labor  is  a  surer  road  to  economic  welfare 
than  fraud  and  dishonesty ;  that  sincerity  and  truthfulness  arouse 
confidence ;  that  falsehood  and  deception  are  poor  means  of  mak- 
ing friends;  in  short,  that  virtue  is  approved  before  God  and 
man,  and  that  vice  is  despised  and  condemned." 

"There  is,  however,  an  important  exception  to  the  last  rule : 
The  vicious  do  not  love  the  virtuous,  but  hate  them.  *  *  * 
"This  explains  the  awful  impulse  to  lead  others  into  temptation 
which  is  so  common  to  vice.  So,  too,  the  flatterer  and  place- 
hunter  hates  the  honest  and  truthful  man,  who  goes  through 
life  with  his  head  erect;  he  imagines  that  the  latter  watches, 
sees  through,  and  despises  him." 

"Should  vice  ever  gain  the  ascendency  in  society,  virtue 
would  arouse  in  most  men,  if  not  contempt,  at  least  hatred  and 
aversion.  And  since  the  vices  cannot  make  those  who  possess 
them  agreeable  in  the  sight  of  men — for  virtue  is  agreeable  to 

*Page  402. 


VIRTUE  AND  HAPPINESS.  41 

the  virtuous,  but  vice  is  not  esteemed  by  the  vicious,  especially 
not  social  vice — a  feeling  of  universal  hatred  would  take  posses- 
sion of  society."    We  would  have  hell  on  earth. 

*"We  reach  the  conclusion  that  for  the  truly  good  man,  for 
one  whose  will  is  completely  ruled  by  virtue,  virtuous  action  is 
always  the  greatest  blessing,  even  though  it  should  not  bring 
external  happiness,  and  should  prove  hard  for  his  sensuous 
nature.  *  *  *  He,  however,  whose  will  is  not  ruled  by  virtue, 
who  does  good  from  fear  or  calculation,  may  feel  disappointed, 
when  the  outward  success  which  he  hoped  to  realize  from  his 
honesty,  temperance,  and  benevolence,  does  not  appear.  To  such 
a  person,  virtue  seems  to  be  an  unprofitable,  or  at  least  uncertain, 
means  of  happiness,  and  he  utters  pessimistic  complaints,  holding 
that  the  evil  doers  fare  well  and  the  good  fare  ill.  This  how- 
ever, does  not  mean  that  he  would  have  been  better  satisfied  if  he 
had  reached  by  crooked  means  the  goal  which  he  complains  of 
having  missed  by  fair  means.  Hence  the  fact  remains  that  there 
is  a  universal  inner  relation  between  virtue  and  success  or  pros- 
perity or  happiness,  while  the  connection  between  wickedness 
and  unhappiness  is  equally  necessary."    *    *    * 

"2.  *The  second  question  is :  What  is  the  effect  of  happi- 
ness upon  character^  By  happiness  we  here  mean  external  hap- 
piness :  wealth,  power,  success,  fame,  honor,  health,  strength, 
victory.  What  effect  has  the  possession  or  pursuit  of  these  upon 
character  ? 

Observation  of  human  affairs  has  convinced  all  the  more 
highly  civilized  nations  of  the  second  great  fundamental  truth 
that  happiness,  or  prosperity,  or*  good  fortune,  is  a  menace  to 
character,  and  finally  also  to  welfare.  We  mentioned  above,  as 
the  first  maxim  of  Greek  wisdom,  the  proposition  that  the  good 
fare  well  and  the  wicked,  ill.  We  may  add  as  the  second : 
Eutuchia"  (prosperity,  success,  good  fortune,  etc.),  "is  not 
identical  with  eudsemonia"  (real  welfare  and  true  happiness)  ; 
"unalloyed  happiness  is  not  happiness." 

"Prosperity  produces  satiety,  a  fat  heart,  as  the  Psalmist 
says.    Such  souls  are  filled  with  pride,  and  pride  leads  to  iniquity, 


*Page  406. 
*Page  407. 


42  SYSTEM  OF  ETHICS. 

which  calls  down  upon  its  head  the  wrath  of  God,  and  destruc- 
tion. That  is,  according  to  the  conception  of  the  Greeks,  as 
expressed  by  their  poets  and  historians,  the  natural  course  of 
events.  Only  an  unusual  amount  of  good  sense  will  enable  a 
man  to  bear  prosperity."     *     *     * 

*"Hence  we  may  say  that  real  happiness  is  a  proper  mixture 
of  so-called  happiness  (good  fortune)  and  misfortune,  A  man's 
lot  is  not  happy  when  all  his  desires  are  always  and  fully  realized, 
— but  when  he  obtains  a  proper  share  of  joy  and  sorrow,  success 
and  failure,  plenty  and  want,  struggle  and  peace,  work  and  rest, 
and  obtains  it  at  the  right  time.  *  *  *  And  so  we  may  be 
permitted  to  say  that  life,  as  we  find  it,  is  on  the  whole  adapted 
to  the  real  needs  of  human  nature;  it  brings  to  everyone  good 
and  evil  days,  successes  and  trials." 

It  seems  rather  paradoxical  to  affirm  that  virtue  tends 
to  produce  happiness,  success  and  prosperity,  and  then  to  say 
that  these  have  a  tendency  to  destroy  the  virtue  that  produced 
them.  Perhaps  it  may  be  explained  in  part  by  the  fact  that 
prosperity  and  success  put  to  the  test  different  elements  and 
qualities  of  character  from  those  previously  developed  and 
tested,  and  offer  opportunity  and  temptation  to  forms  of  evil 
for  which  there  had  been  little  opportunity  or  inclination  pre- 
viously. It  is  true,  also,  that  virtue  is  only  one  of  many 
factors  that  must  cooperate  for  the  accomplishment  of  suc- 
cess or  happiness,  either  of  external  circumstances  or  inner 
feelings.  It  has  been  said  that  the  virtuous  man  is  sure  of 
inner  peace  and  satisfaction  whatever  the  success  or  failure 
of  his  outward  circumstances  and  this  is  doubtless  true  in  an 
important  sense,  in  that  he  may  keep  his  self-respect  and 
steadiness  and  continuity  of  character  and  disposition,  but 
the  man  of  even  perfect  virtue  (if  there  be  such  a  man),  is 
liable  to  have  his  inner  as  well  as  outer  peace  and  satisfaction 
very  much  disturbed  by  such  things  as  poverty,  hardship, 
sickness  and  death,  as  they  may  affect  his  family  or  himself, 
and  still  more  so  if  one  of  his  children  becomes  vicious.  We 
all  understand  that  a  man's  virtue  and  personal  character  can- 

*Page  411. 


MORALITY  AND  RELIGION.  43 

not  alone  preserve  him  from  calamity  and  misfortune,  which 
is  the  same  thing  as  saying  that  virtue  alone  cannot  procure 
success,  prosperity,  and  happiness.  If  then,  other  forces  and 
circumstance  have  important  influence  to  procure  prosperity, 
it  may  well  be  supposed  that  the  peculiar  and  dangerous  temp- 
tations that  prosperity  brings  with  it,  may  be  attributed  more 
to  these  other  forces  and  circumstances  than  to  the  virtue, 
which  also  contributed  to  the  result.  It  is  a  general  rule  that 
results  react  favorably  upon  the  forces  that  produce  them,  at 
least  in  the  moral  and  spiritual  realm, — yes, — in  the  exercise 
of  physical  life  also.  The  exercise  of  strength  increases 
strength,  and  the  success,  prosperity  and  happiness  which 
are  the  normal  result  of  virtue,  react  upon  character  to  give 
stimulus,  confidence  and  courage  to  virtue. 

Another  matter  to  be  considered  is  the  fact  that  the  evil 
influences  of  prosperity,  especially  of  wealth,  are  seen  oftener 
and  more  injuriously  in  the  second  and  third  generations  than 
in  the  persons  who  have  won  prosperity  for  themselves.  In- 
herited wealth  more  frequently  results  in  moral  injury  to  its 
possessor  than  acquired  wealth,  always  supposing  that  it  was 
acquired  by  honorable  means. 

When  considerations  such  as  these  and  others  that  may 
apply  are  given  their  due  weight,  it  will  be  seen  that  the  pros- 
perity and  success  won  by  virtuous  character  and  conduct 
are  not  especially  dangerous  to  the  virtue  that  won  them. 

MORALITY  AND  RELIGION. 

In  Paulsen's  Chapter  8 :  *"The  Relation  of  Morality  to  Re- 
ligion," he  attempts  to  answer  the  question:  "Is  there  an  inner 
connection — one  inherent  in  the  nature  of  things  and  therefore 
indissoluble — between  religion  and  morality,  or  are  they  inde- 
pendent of  each  other,  and  merely  accidentally  related?" 

"An  historical  reflection  will  prepare  us  for  the  answer. 
It  is  one  of  the  safest  propositions  of  anthropology  that  a  very 
intimate  relation  exists  between  the  religion  and  the  morality 
of  a  people,  at  least  at  a  certain  stage  of  its  development.    The 

*Page  415. 


44  SYSTEM  OF  ETHICS. 

customs  have  the  sanction  of  the  gods ;  the  commandments  of 
religion  and  morality  form  a  unified  code  of  laws ;  piety  and 
morality  are  regarded  as  one  and  the  same  thing.  Let  me  sim- 
ply call  to  mind  the  best  known  example.  In  the  laws  of 
Moses,  religious,  moral,  and  legal  duties  appear  as  wholly 
homogeneous  parts  of  one  law  of  God.  *  *  *  xhe  fear 
of  God  is  the  foundation  of  morality ;  pious  and  good,  godless 
and  bad,  are  synonymous  terms.  Christianity  and  Moham- 
medanism accept  this  view.  We  find  it  also  among  the  Greeks 
and  Romans,  Hindoos  and  Persians,  Egyptians  and  Assyrians. 
The  entire  life  of  the  individual  and  society  is  regulated  by 
religion ;  all  the  institutions  of  state  and  society ;  all  customs 
and  usages  which  govern  the  life  of  the  individual,  have  a 
religious  basis.  We  note  the  same  connection  between  reli- 
gion and  morals  among  the  most  civilized  tribes  of  all  the 
native  peoples  of  America,  among  the  Mexicans  and  Peru- 
vians." Paulsen  also  quotes  Waitz,  an  authority  on  anthrop- 
ology, as  saying,  "There  is  hardly  a  more  trustworthy  sign 
and  a  safer  criterion  of  the  civilization  of  a  people  than  the 
degree  in  which  the  demands  of  a  pure  morality  are  supported 
by  their  religion  and  interwoven  with  their  religious  life."* 

*  *  *  ^"Morality  and  religion  spring  from  the  same 
root,  the  yearning  of  the  will  for  perfection.  But  that  which  is  a 
demand  in  morals  becomes  a  reality  in  religion.  Perfection  is 
described  by  morality  in  abstract  formulae ;  it  is  instituted  in 
religion  in  concrete  form  as  a  divine,  holy,  and  blessed  life. 
And,  too,  morality  and  religion  are  seen  to  be  two  phases  of 
the  same  thing  in  the  subject:  the  individual  is  moral  in  so  far  as 
his  willing  and  acting  strive  after  perfection;  pious,  in  so  far 
as  his  feelings,  his  faith,  and  his  hopes,  are  inspired  with  the 
image  of  the  highest." 

"Let  us  now  consider  the  effect  of  the  union  of  religion 
and  morals.  There  can  hardly  be  a  doubt  that  the  religious 
sanction  of  custom  and  the  moral  laws  has,  in  a  large  measure, 
assisted  in  the  moral  discipline  of  the  individual.  *  *  * 
The  belief  in  a  life  after  death  has  been  especially  influential  in 


*(Th.  Waitz:  Anthropologic  der  Naturvolker.     Vol.  4,  128) 


MORALITY  AND  RELIGION.  45 

this  direction.  *  *  *  The  fear  and  the  hope  of  the  here- 
after become  powerful  protectors  of  morality."* 

Paulsen  goes  on  with  a  very  long  discussion  of  whether 
the  close  relation  of  morality  and  religion  is  essential  and 
permanent  or  "merely  a  passing  phenomena,  peculiar  to  a  par- 
ticular stage  of  development.  Will  the  connection  be  severed 
in  the  future?  Will  there  then  be  a  perfect  morality  without 
any  religiosity?" 

"This  question  was  not  seriously  debated  till  recently.  For 
centuries  nothing  seemed  more  self-evident  than  the  insepa- 
rableness  of  morality  and  religion."  The  question  arises  by 
reason  of  a  purely  physical  conception  of  the  universe,  which 
some  have  supposed  to  imply  the  absence  of  any  moral  quali- 
ties or  values,  and  to  lead,  as  a  logical  consequence,  to  the 
ignoring  of  the  moral  laws.  Paulsen  does  not  support  this 
view, — "We  shall  prefer  to  say :  Whatever  may  be  a  man's 
notion  of  the  nature  of  things,  the  laws  of  morality  are  none 
the  less  binding  upon  him ;  they  are  not  arbitrary  prescrip- 
tions, the  observance  of  which  is  advisable  from  the  stand- 
point of  rewards  and  punishments.  They  are  rather  laws  of 
nature  in  the  sense  that  the  welfare  of  a  life  depends  upon 
their  observance.  And  the  opinions  of  men  in  nowise  affect 
them.  Hence,  if  one  were  to  infer  from  an  atheistic  material- 
istic conception,  that  the  laws  of  morality  had  no  further  claim 
upon  him,  he  would  be  in  error,  and  would  have  to  bear  the 
consequences  of  his  error.  *  *  *  Still,  I  do  not  believe 
that  morality  and  religion  are  indifferent  to  each  other." 

"There  are  two  views  of  the  world  which  are  radically 
opposed  to  each  other.  The  central  thought  of  the  one  is  that 
the  good  is  an  essential  element  in  the  world,  that  reality 
exists  through  the  good  and  for  the  sake  of  the  good.  We  can 
call  this  conception  idealistic,  following  Plato's  terminology, 
who  bases  the  world  upon  the  idea  of  good.  W'e  may  also 
call  it  theistic,  if  we  mean  by  belief  in  God  the  trust  that  the 
good  is  the  ground  and  the  goal  of  the  world,  or,  to  use 
Fichte's  expression,  that  the  world-order  is  in  the  last  analysis 
a  moral  order.     *     *     * 

*Page  420. 


46  SYSTEM  OF  ETHICS. 

"Opposed  to  idealism,  we  have  materialism;  according  to 
it,  the  world-principle  is  in  its  essence  absolutely  indifferent 
to  distinctions  of  value.  The  atoms  and  their  uniform  mo- 
tions, of  which  the  whole  of  reality  is  composed,  have  origi- 
nally absolutely  nothing  to  do  with  the  good  and  the  evil, 
the  rational  and  the  irrational." 

Paulsen  strongly  supports  the  idealistic  or  theistic  con- 
ception, and  recognizes  the  close  relation  and  mutual  support 
and  assistance  of  faith  in  God  and  conformity  to  his  will  which 
are  the  essence  of  religion  on  the  one  hand,  and  the  character 
and  conduct  of  life  on  the  other  hand.  The  chapter  is  long 
and  no  attempt  can  be  made  here  even  to  epitomize  his 
argument. 

THE  FREEDOM   OF  THE  WILL. 

*"Let  me  discriminate,  at  the  outset,  between  two  senses 
of  the  word;  we  may  speak  of  freedom  of  the  will  in  a 
psychological  or  in  a  metaphysical  sense.  The  former  means 
the  ability  to  cause  decisions  and  acts  by  one's  own  will  (free- 
dom of  choice)  ;  the  latter  means  that  the  will  or  the  particu- 
lar decisions  themselves  have  no  cause." 

"In  popular  speech,  the  term  'free  will'  is  employed  solely 
in  the  first  sense.  An  act  is  called  free  when  the  will  of  the 
agent  is  its  immediate  cause;  determined,  when  it  is  caused 
by  an  external  force,  that  is,  either  directly,  by  physical  com- 
pulsion, or  indirectly,  by  threats,  misrepresentations,  etc.  In 
the  latter  case,  the  will  is  really  not  the  cause  of  the  decision ; 
but  here  there  is  a  wide  range  between  gentle  persuasion  and 
irresistible  compulsion,  and  therefore  a  corresponding  gradual 
transition  from  complete  freedom  to  complete  determinism." 

"That  there  is  psychological  freedom  has  never  been 
doubted.  But  whether  the  will  can  be  free  in  the  other  sense, 
is  a  subject  of  endless  debate." 

The  question  of  metaphysical  freedom  as  against  fatalism 
or  determinism,  is  not  a  practical  one  as  related  to  the  con- 
duct of  life  and  we  need  not  spend  any  time  in  vain  efforts  at 
a  solution  of  it.  "It  belongs  to  philosophizing  theology,  or 
scholasticism." 

*Page  452. 


FREEDOM  OF  THE  WILL.  47 

After  a  lengthy  description  of  the  heredity,  the  circum- 
stances, conditions  and  relations  that  influence  one's  life  and 
character,  he  says :  "Everyone  has  an  immediate  feeling  of 
certainty  that  he  is  not  moulded  into  what  he  is  from  without, 
that  everything  would  have  happened  otherwise  if  he  had 
willed  otherwise.  And  he  is  likewise  absolutely  sure  that  the 
future  shaping  of  his  life  depends  upon  his  will.  *  *  *  j 
could  also,  and  perhaps  ought  to,  says  self-consciousness, 
alter  my  mode  of  life,  my  behavior  to  others,  my  character. 
Is  all  this  an  illusion?" 

"Certainly  not.  Self-consciousness  does  not  deceive  us. 
But  what  does  it  say?  Surely  this, — that  to  the  influences 
which  have  determined  and  will  continue  to  determine  my 
life  and  character,  must  be  added  my  wishes  and  inclinations, 
my  convictions  and  resolutions,  and  particularly  these." 

Paulsen  goes  on  in  a  lengthy  discussion  of  responsibility 
and  accountability,  especially  their  practical  aspects  in  the 
treatment  by  society  of  offenders  and  criminals.  Then  he 
says: 

"The  expression  freedom  of  the  will  signifies  in  popular 
speech  a  real,  positive  property  of  human  nature.  Animals, 
too,  have  wills,  but  we  do  not  attribute  free  will  to  them. 
Wherein  does  the  difference  consist?" 

"Animals  are  moved  to  action  by  momentary  impulses 
and  perceptions.  *  *  *  Deliberation,  hesitation,  and  choice 
exist  only  in  rudimentary  forms  among  the  most  highly  de- 
veloped animals.  Now  such  processes  are  characteristic  of 
man.  He  determines  his  conduct  by  resolutions.  Resolutions 
are  the  result  of  deliberation;  in  deliberation  several  possible 
courses  of  action  or  modes  of  behavior  are  compared  with  the 
ultimate  aims  of  individual  and  social  life,  and  chosen  accord- 
ingly. Man,  therefore,  is  not  determined  by  his  impulses,  but 
he  determines  himself  by  ideas  of  ends.  In  his  purposes,  man 
comprehends  his  whole  life  into  a  unity,  as  it  were,  and  chooses 
the  particular  acts  according  to  their  relation  to  this  princi- 
ple. *  *  *  -pi-ig  unity  of  practical  self-consciousness  or 
conscience,  exercises  a  constant  control  over  the  particular 
processes  of  inner  life,  feelings,  strivings,  acts,  thoughts.  Well, 


48  SYSTEM  OF  ETHICS. 

this  faculty  of  regulating  and  determining  the  particular  func- 
tions of  life  by  an  idea  of  one's  life,  is  precisely  what  we  mean 
by  free  will.  Hence,  we  may  also  say  that  a  person's  acts  are 
free,  when  he  is  determined,  not  by  present  stimuli  and  the 
momentary  desires  aroused  by  them,  but  by  ideas  of  ends 
and  ideals,  by  duty  and  conscience;  in  the  former  case,  he  is 
driven,  in  the  latter  alone  he  acts." 

"We  may  accordingly  add  that,  in  a  certain  sense,  the 
view  that  the  human  will  is  exempt,  or  forms  a  kind  of  con- 
clave in  nature,  is  correct.  The  animal  is  a  point  of  transition 
for  natural  processes;  it  is  itself  a  part  of  nature,  determined 
from  without  by  constantly  approaching  stimuli  and  influ- 
ences. Man,  on  the  other  hand,  in  a  certain  manner,  emanci- 
pates himself  from  the  course  of  nature ;  he  rises  above  nature 
and  opposes  it  as  a  self,  he  determines  it  and  employs  it,  is 
not  determined  by  it;  man  becomes  a  personality.  As  such, 
he  is  able  to  put  his  whole  self,  his  ego,  into  every  phase  of  his 
life,  and  therefore  he  is  responsible  for  every  particular  act." 

'Tt  is  apparent  that  freedom  in  this  sense  is  not  an  orig- 
inal endowment  of  human  nature,  but  an  acquired  character- 
istic; it  has  been  acquired  by  the  entire  race  in  the  course  of 
history,  and  must  be  acquired  anew  by  each  individual.  The 
new-born  child  does  not  bring  with  it  a  ready-made  freedom; 
nay,  it  is  driven  like  an  animal  by  momentary  cravings.  But 
gradually  the  rational  will,  supported  by  education,  rises  above 
the  natural  impulses.  This  occurs  in  a  different  degree  in  dif- 
ferent individuals ;  some  are  wholly  controlled  by  these  im- 
pulses during  their  entire  lives,  others  acquire  such  a  remark- 
able control  over  nature  in  themselves  that  they  seem  to  regu- 
late even  the  smallest  details  of  their  lives  by  rational  deliber- 
ation, and  never  do  anything  or  leave  anything  undone,  ex- 
cept by  choice.  It  is  to  be  observed,  in  this  connection,  that 
though  it  is  vulgar  and  base  to  give  the  impulses  complete 
mastery  over  one's  self,  yet  the  complete  suppression  of  them 
fills  us  with  fear  and  awe.  *  *  *  Man  seems  to  be  in- 
tended as  a  mean  between  an  animal  and  a  purely  ratiorial 
being." 

"Hence,  can  a  man  determine  himself  by  his  own  will? — 


FREEDOM  OF  THE  WILL.  49 

Can  he  fashion  his  will  by  means  of  his  will?  Yes  and  no. 
Yes,  for  he  undoubtedly  has  the  faculty  of  educating  him- 
self; he  can  fashion  his  outer  and  inner  man  with  conscious 
purpose,  according  to  his  ideal ;  he  can  discipline  his  natural 
impulses,  nay,  even  suppress  them  so  that  they  will  no  longer 
move  him.  To  be  sure,  he  cannot  do  this  simply  by  wishing 
or  resolving  it ;  he  can  do  it  only  by  constant  practice  and  by 
employing  appropriate  means,  in  the  same  way  that  he  acquires 
bodily  skill."     *     *     * 

"On  the  other  hand,  we  shall  have  to  say  that  this  forma- 
tive principle  itself  must  be  native  to  him ;  this  he  cannot  give 
himself  by  his  will,  for  it  is  the  innermost  will  itself.  *  *  * 
We  are  everywhere  confronted  with  the  notion ; — The  free- 
dom of  man  means  the  control  of  the  spirit,  the  slavery  of 
man  means  the  rule  of  the  animal  desires." 

"This  is  the  positive  significance  of  the  freedom  of  the  will. 
And  ethics  should  not  permit  the  whimsical  attempts  of  a  few 
metaphysicians  to  explain  freedom  of  the  will  as  the  causeless- 
ness  of  the  individual  will  or  volition,  to  induce  her  absolutely 
to  reject  the  so  fruitful  and  necessary  concept  of  free  will. 
Freedom  of  will  means,  according  to  the  popular  usage  of  all 
men,  these  metaphysicians  excepted,  the  faculty  to  determine 
one's  life,  independently  of  sensuous  impulses  and  inclinations, 
by  reason  and  conscience,  according  to  purposes  and  laws  ;  and 
that  man  has  such  a  faculty,  that  this  really  constitutes  the 
very  essence  of  man,  no  one  has  ever  doubted." 


CHAPTER  IV. 

DOCTRINE  OF  VIRTUES  AND  DUTIES. 
SELF-CONTROL,   TEMPERANCE,   COURAGE. 

Introducing  his  Book  Third,  "Doctrine  of  Virtues  and 
Duties,"  Paulsen  has  this  quotation: 

"I  possess  three  treasures ;  these  I  guard  and  prize  highly. 
The  first  is  the  love  of  humanity;  the  second,  frugality;  the 
third,  that  I  do  not  presume  to  be  better  than  any  one  else. 
Love  of  humanity — with  this  I  can  be  fearless;  frugality — 
therefore  I  can  give  to  others ;  freedom  from  ambition — hence 
I  have  no  one  above  me. 

"Nowadays  we  despise  love  of  humanity  and  are  inso- 
lent ;  we  despise  economy,  and  are  wasteful ;  we  despise  mod- 
esty and  strive  to  surpass  everyone  else.  These  paths  lead 
to  death." 

Laotsee,  Taoteking  67. 
(After  translation  of  Noack.) 

VIRTUE  AND  VICES  IN  GENERAL.* 

"The  doctrine  of  duties  and  the  doctrine  of  virtues  are  dif- 
ferent modes  of  presenting  the  same  subject  matter.  The  former 
gives  us  a  system  of  rules  which,  as  commands  or  laws,  specify 
the  modes  of  conduct  essential  to  the  solution  of  the  problem 
of  life.  The  doctrine  of  virtues  describes  the  system  of  pow- 
ers by  the  exercise  of  which  this  end  is  realized.  We  have 
already  discussed  the  nature  of  duty.  Let  us  now  add  a  few 
words  concerning  the  nature  of  virtue." 

"Virtues  may  be  defined  as  habits  of  the  will  and  modes 
of  conduct  which  tend  to  promote  the  welfare  of  individual 
and  collective  life.  Impulses  form  their  natural  basis.  Vir- 
tues are  not  inventions  of  the  moralists ;  they  are  natural  pre- 
dispositions. Predispositions  only,  remember;  for  impulses 
are  not  themselves  virtues :  as  impulses  they  have  no  moral 


*Paulsen.    Page  475. 


DOCTRINE  OF  VIRTUES  AND  DUTIES.  51 

quality.  The  impulse  to  eat  is  not  good  or  bad,  but  it  is  the 
foundation  of  rational  self-preservation.  The  sexual  impulse 
is  not  good  or  bad,  but  it  is  the  natural  basis  of  the  virtues 
on  which  family  life  depends.  Compassion  or  sympathy,  the 
impulse  to  alleviate  the  pains  of  others,  is  not  good  or  bad,  but 
it  is  the  natural  foundation  of  the  virtue  of  benevolence. 
Similarly,  indignation  at  wrong  and  the  impulse  of  revenge 
form  the  natural  basis  of  the  sense  of  justice.  Moreover, 
impulses  form  the  permanent  basis  of  the  virtues.  They  can- 
not, as  many  moralists  are  prone  to  assume,  be  supplanted  by 
rational  reflection.  A  being  like  Spinoza''s  sage,  who  is  deter- 
mined to  action,  not  by  impulse,  but  by  reason  alone,  does 
not  exist  and  cannot  exist ;  any  more  than  Kant's  dutiful  man, 
whose  will  is  governed  solely  by  respect  for  the  moral  law, 
without  impulse  and  inclination.  Such  a  being  would  not  be 
a  human  being,  but  a  phantom." 

*'Tmpulses  are  fashioned  into  virtues  or  moral  excellences 
by  the  reason.  We  are  educated,  first,  by  the  reason  of  others, 
then  by  our  own  reason.  Human  life  begins  as  a  purely 
impulsive  life;  the  reason  is  developed  slowly  and  at  a  late 
stage.  During  the  long  period  of  youth,  the  collective  reason 
of  the  race,  as  represented  by  parents,  educators  and  teachers, 
takes  the  place  of  individual  reason.  Fixed  habits  are  the 
result  of  this  education ;  in  them  the  customs  of  the  commun- 
ity become  individualized.  Acquired  habits  constitute  an 
extremely  important  part  of  moral  culture;  they  obtain  con- 
trol over  life  and  guide  it  with  automatic  certainty.  The 
important  elementary  functions  of  life,  especially,  are  gov- 
erned by  them.  Cleanliness,  for  example,  against  which  the 
child  at  first  rebels,  becomes  a  habit,  which  acts  with  the 
regularity  of  a  natural  function.  Most  closely  related  to  it, 
is  shame,  which  is  implanted  and  established  by  education, 
and  soon  acquires  the  force  and  certainty  of  an  instinct. 
So,  too,  aversion  to  falsehood,  or  politeness  to  others,  be- 
comes a  second  nature.  The  formation  of  such  automatic 
forms  of  reaction  constitutes  a  primary  and  important  phase 

*Page  476. 


52  SYSTEM  OF  ETHICS. 

of  moral  education.  The  second  stage  is  the  gradual  develop- 
ment of  the  individual's  appreciation  of  moral  goods :  this 
is  the  function  of  moral  instruction.  The  latter  will  always 
have  to  consist,  at  first,  in  the  presentation  of  concrete  ex- 
amples of  the  good,  and  provided  the  proper  care  is  exercised, 
— of  examples  of  the  evil  also.  After  many  concrete  facts 
have  been  handled,  the  abstract  or  philosophical  treatment 
of  moral  concepts  will  gradually  be  taken  up.  Perhaps  our 
public  instruction  is  too  cautious  in  this  respect.  Our  schools, 
the  higher  as  well  as  the  lower,  are  afraid  of  the  evil  effects 
of  premature  abstract  instruction  in  morals,  and  therefore 
decide  to  omit  it  altogether.  I  fear  that  the  omission  is  dis- 
astrous. The  time  is  bound  to  come  in  the  life  of  every 
young  man  when  he  will  begin  to  inquire  into  the  principles 
of  moral  conduct  and  judgment;  and  there  is  danger  that, 
being  wholly  without  guidance  he  will  become  the  helpless 
victim  of  his  own  crude  thoughts  or  of  the  sophistry  of  'en- 
lightened' companions.  Principles  and  moral  instruction  are 
not  in  themselves  necessary  to  secure  correct  judgment  and 
action,  but  they  are  necessary  to  protect  the  individual  against 
inadequate  and  misleading  principles." 

"But  not  only  is  the  individual  educated  by  others,  he 
gradually  learns  to  educate  himself.  The  important  thing  is 
to  learn  the  great  art  of  governing  the  inclinations  by  means 
of  a  rational  will,  one  that  is  determined  by  principles,  to 
fashion  and  educate  the  impulses  according  to  an  idea  of 
perfection,  which  gradually  assumes  shape.  When  the  child 
leaves  school  and  the  parental  home,  his  education  by  others 
practically  comes  to  an  end.  The  most  eventful  period  of 
his  life  now  begins,  the  period  of  incipient  moral  independ- 
ence. His  previous  training  is  now  put  to  the  test ;  it  must 
show  whether  it  has  succeeded  in  establishing  the  power  of 
self-government.  Not  many  discover  the  right  path  at  once; 
the  art  of  self-government,  like  everything  else,  has  to  be 
learned.  It  can  be  acquired  only  by  constant  intercourse  with 
the  world;  hence  there  is  an  instinctive  desire  at  this  period 
of  life  to  come  into  frequent  contact  with  men  and  things ; 
these  are  the  years  of  travel,  which  follow  the  years  of  ap- 


DOCTRINE  OF  VIRTUES  AND  DUTIES.  53 

prenticeship.  At  the  end  of  the  IVanderjahre,  between  the 
ages  of  twenty  and  thirty,  or  in  some  cases  not  until  the 
close  of  this  period,  the  inner  man  has  assumed  definite  and 
permanent  shape.  The  following  years  do  not  possess  the 
dramatic  interest  of  their  predecessors,  the  time  of  great 
crises  and  decisions  is  past;  the  exercise  of  the  physical, 
mental,  and  moral  powers  and  capacities  which  have  been 
acquired  forms  the  content  of  the  age  of  manhood.  In  old 
age  the  powers  diminish,  life  gradually  loses  itself  in  remin- 
iscences, and  so  drifts  into  the  past.  Differences  in  moral 
types  correspond  to  these  four  ages  of  life.  Pliant  modesty 
constitutes  the  inner  habit  of  the  well-trained  boy ;  hopeful, 
optimistic  idealism,  that  of  youth ;  persistent  and  energetic 
action,  that  of  the  man ;  the  tranquil  peace  of  contemplation, 
that  of  old  age." 

*"This  would  answer  the  old  question,  the  discussion  of 
which  marked  the  beginning  of  Greek  moral  philosophy : 
Can  virtue  be  taught f  We  answer  with  Aristotle :  It  cer- 
tainly can :  but  like  all  excellences,  it  must  be  practiced  first 
of  all ;  hearing  others  talk  about  it  will  not  avail.  We  do  not 
learn  to  walk  and  to  ride,  to  teach  and  to  govern,  by  hearing 
these  things  talked  of;  so  it  is  with  virtue.  Of  course,  prac- 
tice can  and  must  afterwards  be  supplemented  by  theoretical 
instruction;  this  applies  to  moral  efficiency  as  well  as  to 
physical  dexterity  and  skill.  The  counsels  and  teachings 
of  parents  and  teachers,  of  spiritual  advisers  and  preachers, 
may  assist  the  moral  development  in  a  most  effective  way. 
*  *  *  Of  course,  mere  babble  will  not  avail.  Such  instruc- 
tion will  prove  effective  only  in  case  it  comes  from  the  proper 
source,  and  rests  upon  a  profound  knowledge  of  life,  its  order, 
and  its  laws." 

"Virtues  are  normal  powers  of  the  will,  tending  to  pre- 
serve and  unfold  human  mental  life.  Vices,  on  the  other 
hand,  are  abnormally-developed  powers  of  the  will,  which 
tend  to  destroy  individual  life  and  that  of  the  surroundings ; 
or,  rather,  not  really  powers  of  the  will  at  all,  if  we  mean  by 
will  the  rational  human  will,  but  abnormally-developed  nat- 

*Page  478. 


54  SYSTEM  OF  ETHICS. 

ural  impulses.  Vice  aways  indicates  a  lack  of  will;  indeed, 
all  evil  is,  according  to  the  old  view,  nothing  really  positive; 
it  does  not  belong  to  the  essence  of  the  will,  but  must  be 
defined  as  a  lack  of  will.  *  *  *  The  fundamental  form 
of  vice  is  lack  of  will  power  to  harmonize  the  impulses ;  strong 
natural  impulses  gain  absolute  supremacy,  while  weak  ones 
entirely  disappear.  When  the  sympathetic  impulse  or  the 
instinctive  faculty  to  anticipate  in  feeling  the  more  remote 
consequences  of  acts,  is  poorly  developed,  and  the  defect  is 
not  remedied  by  education  and  self-government,  the  habit  of 
selfishness  and  inconsiderateness  arises.  Certain  impulses 
may  be  hypertrophically  developed,  and  may  gradually  crowd 
out  all  the  others.  So  for  example,  in  the  case  of  the  alco- 
holist,  the  desire  for  certain  stimulants,  gradually  increases 
in  strength,  and  all  other  impulses  die  out,  such  as  the  impulse 
to  work  and  acquire,  the  love  of  knowledge  and  spiritual 
activity.  The  sympathetic  feelings  and  social  impulses  are 
likewise  weakened  and  finally  extinguished,  and  with  them 
shame  and  conscience,  which  at  first  reacted  against  the  ex- 
cesses, disappear.  In  the  same  way,  life  is  debauched  by 
other  abnormally-developed  impulses,  by  unbridled  sexual 
impulses,  by  the  impulse  to  acquire  and  possess  property, 
which  is  intensified  in  rapacity  and  greed,  by  the  love  of 
fame  and  honor,  which  degenerates  into  ambition,  etc. ;  these 
monopolize  all  powers  and  all  strivings,  and  finally  render  the 
soul  completely  insensible  to  all  other  interests  and  con- 
siderations."    *     *     * 

"*It  is  customary  to  distinguish  between  two  kinds  of 
duties :  duties  toward  self  and  duties  toivard  others.  The  no- 
tion of  duty  toward  self  has  been  rejected  by  some;  there 
can  be  duties,  it  is  held,  only  where  there  are  legal  rights. 
It  seems  to  me  that  this  is  an  unnecessary  contraction  of 
the  concept.  If  the  individual  life  has  its  moral  problems 
to  solve,  it  likewise  has  its  duties.  *  *  *  Hence,  I  shall 
retain  the  old  classification,  reminding  the  reader,  however, 
that  it  is  not  a  legitimate  division :  there  are,  as  was  shown 
above,  no  acts  which  aiTect  only  the  individual   or  society, 

*Page  481. 


DOCTRINE  OF  VIRTUES  AND   DUTIES.  55 

hence  also  no  duties  toward  self  which  are  not  at  the  same 
time  duties  towards  others,  and  conversely." 

"Corresponding  to  this  classification  of  duties,  we  may 
also  divide  the  virtues  into  two  groups :  we  may  call  them 
individualistic  and  social  virtues.  The  fundamental  form  of 
the  former  is  self-control;  the  fundamental  form  of  the  latter 
benevolence.  They  are  rooted  in  the  two  fundamental  forms 
of  impulsive  life :  the  impulse  of  self-preservation  and  the 
sexual  impulse." 

SELF   CONTROL. 

"*The  chief  purpose  of  all  moral  culture  is  to  fashion  the 
rational  will  so  that  it  may  become  the  regulative  principle 
of  the  entire  sphere  of  conduct.  We  call  the  virtue  or  ex- 
cellence which  regulates  our  behavior  and  conduct  by  the 
rational  will,  independently  of  momentary  feelings,  self-con- 
trol. We  may  also  define  it  as  the  capacity  to  govern  life 
by  purposes  and  ideals.  It  is  the  fundamental  condition  of 
all  moral  virtues,  the  fundamental  precondition  of  all  human 
worth,  nay,  the  fundamental  characteristic  of  human  nature. 
Animals  are  determined  by  blind  impulses,  but  the  specific 
excellence  of  man  consists  in  his  determining  his  life  by  his 
will ;  without  self-control,  no  freedom  and  no  personality. 
The  Greeks  call  the  virtue  of  self-control  healthy-mindedness. 
Senseless,  foolish,  is  the  man  whom  fear,  anger,  and  desire, 
control,  causing  him  to  act  irrationally  and  to  ruin  himself; 
— healthy-minded,  rational,  on  the  contrary,  is  the  man  who 
keeps  his  wits  even  in  difficult  situations,  and  acts  in  accord- 
ance with  the  law  of  self-preservation." 

"Self-control  assumes  different  phases,  corresponding  to 
the  different  forms  of  impulsive  life.  As  its  two  fundamental 
aspects  we  may,  with  the  Greek  moralists,  designate  tem- 
perance and  courage.  Temperance  may  be  defined  as  the 
moral  power  to  resist  desires  attracted  by  tempting  enjoy- 
ment, when  the  gratification  of  such  desires  tends  to  endanger 
an  essential  good.  Courage  is  the  moral  power  to  resist  the 
natural  fear  of  pain  and  danger  when  the  preservation  of  an 
essential  good  demands  such  resistance." 

*Page  483. 


56  SYSTEM  OF  ETHICS. 

TEMPERANCE. 

*"Temperance  or  moderation,  the  ability  to  resist  tempta- 
tion to  sensuous  pleasure,  is  the  precondition  of  humanization. 
The  animal  is  essentially  blind  impulse,  in  the  satisfaction  of 
which  its  life  consists.  Man,  too,  is  endowed  with  an  animal 
nature,  but  its  purpose  is  to  serve  as  the  soil  for  a  higher, 
spiritual  life;  this  soil  is  prepared  by  the  discipline  of  the 
natural  impulses.  The  latter  are  not  to  be  eradicated,  that 
would  mean  insensibility  and  finally  death,  but  their  satisfac- 
tion is  to  be  so  regulated  that  they  not  only  will  not 
disturb  the  development  of  higher  life,  but  rather  assist  it. 
The  relation  is  reversed  in  the  opposite  habit,  intemperance, 
which  is  not  merely  a  relapse  into  an  animal  state :  nay,  the 
higher  powers  and  gifts  of  man  are  here  subordinated  to  sen- 
suous desire.  So  in  gluttony  and  the  worship  of  the  belly; 
all  the  arts  of  civilization  are  here  employed  to  excite  and 
satisfy  sensuous  desires.  So  pleasure-seeking  and  also  sex- 
ual dissipation  have  drawn  into  their  service  an  entire  in- 
dustry of  exquisite  enjoyments." 

"Even  the  most  superficial  examination  of  the  facts  can- 
not leave  us  in  doubt  as  to  the  value  and  effects  of  these  two 
contrary  modes  of  action.  Intemperance,  dissipation,  inor- 
dinate love  of  pleasure,  first  of  all  destroy  our  sense  and  ca- 
pacity for  higher  things;  the  will  and  the  intellect  are  ex- 
hausted by  excesses ;  finally  the  sensibility  is  blunted  until 
at  last  even  the  faculty  for  enjoyment  is  lost.  All  passive  en- 
joyments deaden  the  sensibilities;  stronger  and  more  refined 
excitations  are  constantly  needed  to  procure  feelings  of  plea- 
sure through  the  exhausted  organ,  until  at  last  the  chronic 
state  of  dullness  which  is  characteristic  of  the  roue  is  reached ; 
the  powers  of  the  organism  and  its  irritability  are  exhausted ; 
nothing  is  left  but  the  repulsive  dregs  of  life.  Temperance 
has  the  opposite  effect;  it  makes  the  entire  man  healthy  and 
vigorous,  capable  of  action  and  enjoyment." 

"*This  virtue,  like  all  habits,  is  acquired  by  experience. 
The  foundation  is  laid  by  a  good  education.    The  best  way  to 


*Page  485. 
*Page  486. 


DOCTRINE  OF  VIRTUES  AND   DUTIES.  57 

prevent  the  growth  of  excessive  desires  is  to  satisfy  the 
natural  needs  in  an  appropriate  and  orderly  manner.  This 
can  easily  be  done  in  a  well-regulated  household,  but  is  ex- 
tremely difficult  under  conditions  of  luxury  as  well  as  of 
poverty.  Perhaps  we  can  still  agree  with  John  Locke  that 
an  honest  farmhouse  is  the  best  place  for  rearing  a  child. 
Gradually,  the  child  may  be  encouraged  to  give  up  little 
things  of  its  own  accord ;  we  cannot  begin  too  soon  in  teach- 
ing the  child  the  great  art  of  life :  to  sacrifice  today  for  to- 
morrow. The  child  then  educates  itself.  The  sense  of  honor 
may  be  appealed  to  as  an  ally  against  desire.  The  ability  to 
bear  privation  with  equanimity  is  so  closely  related  to  cour- 
age that  the  boy  too  sees  the  connection :  it  is  weak  and  cow- 
ardly to  yield  to  desire.  Greek  ethics  is  full  of  excellent 
moral  advice  on  this  subject.  How  disgraceful,  it  says,  to  be 
compelled  to  obey  the  animal  or  child  in  us,  which  is  full  of 
needs  and  desires ;  how  beautiful  and  praiseworthy  and  in 
keeping  with  man's  dignity,  on  the  other  hand,  is  the  free- 
dom and  independence  which  is  not  disturbed  by  privation 
and  want !  Whoever  succumbs  to  his  desires  is  a  slave  to 
objects;  they  draw  him  now  hither,  now  thither,  through 
pleasure  and  fear.  *  *  *  These  are  sentiments  which 
the  youth  of  all  ages  can  understand.  When  the  sense  of 
honor  works  in  the  opposite  direction,  as  happens,  to  a  large 
extent,  in  our  times,  the  relation  is  an  unnatural  one.  There 
are  two  essential  reasons  for  such  perverseness.  The  first  is 
the  wish  of  the  youth  to  show  that  he  has  the  means,  the 
second,  that  he  has  the  power  and  the  courage  to  indulge  him- 
self. The  latter  motive  exercises  a  particularly  strong  in- 
fluence upon  the  young  man.  He  is  afraid  of  being  looked 
upon  as  a  baby,  standing  in  awe  of  the  rod,  or  as  a  "goody- 
goody"  boy,  who  is  afraid  of  hell  and  the  devil.  *  *  ♦ 
The  satisfaction  of  his  cravings  becomes  a  matter  of  show. 
We  are  ashamed,  to  use  Augustine's  expression,  of  not  being 
shameless."     *     *     * 

"The  most  fruitful  method  of  counteracting  the  growth 
of  cupidity  and  the  inordinate  love  of  pleasure  is  to  train 
the  individual  to  efficient  action.     All  successful  exercise  of 


58  SYSTEM  OF  ETHICS. 

natural  powers  and  skill  in  labor  and  in  play  is,  as  Aristotle 
teaches,  accompanied  by  pleasure.  And  this  pleasure  is  su- 
perior to  the  pleasure  of  passive  enjoyment.  It  can  be  pro- 
cured without  the  sting  of  desire.  It  is  more  independent 
of  external  conditions;  enjoyment  consumes,  activity  creates 
commodities.  It  is  intensified  by  repetition ;  for  while  pas- 
sive pleasure  increases  the  intensity  of  desire  but  dulls  the 
faculty  of  enjoyment,  action  increases  our  efficiency;  and  the 
greater  the  skill,  the  greater  the  pleasure  of  exercising  it.  As 
in  all  cases,  the  better  is  here  the  enemy  of  the  good ;  the 
pleasure  which  we  derive  from  action,  especially  that  result- 
ing from  play,  is  the  most  effective  means  of  suppressing  the 
pleasures  of  passive  enjoyment."     *     *     * 

"An  ascetic  life  is  characterized  by  the  habitual  renun- 
ciation of  even  moderate  and  legitimate  pleasures."  Ascetic- 
ism has  undoubtedly  performed  a  useful  service  in  the  past 
as  a  protest  against  excessive  indulgence,  and  an  example  of 
the  power  of  the  human  will  to  suppress  and  perhaps  finally 
to  extinguish  the  normal  impulses  and  desires,  'for  wealth, 
or  material  culture ;  for  fame  and  power,  or  ideal  culture ; 
and  finally,  of  family  life,  that  is,  the  preservation  of  the  spe- 
cies, or  the  precondition  of  all  human  culture.'  Asceticism  in 
its  extreme  forms  has  few  examples  and  few  advocates  in 
these  days.  Perhaps  it  is  because  there  is  a  general  opinion 
that  examples  of  moderate  and  appropriate  exercise  or  in- 
dulgence of  normal  impulses  and  desires  will  have  greater 
influence  for  good  upon  all  beholders  than  either  abnormal 
renunciation  or  abnormal  excesses. 

*"Unpretendingness  or  modesty  is  a  modification  of  temper- 
ance, its  inner  form  as  it  were.  It  is  a  moderation  of  desire  as 
such,  the  moderation  of  the  desire  for  wealth,  and  fame,  position 
and  pleasure.  Unassuming  modesty  consists  in  habitually  lower- 
ing one's  pretensions  to  the  level  of  one's  fortunes.  Its  effect  is 
contentment;  and  hence  it  is  the  safest  guide  to  happiness,  just  as 
its  opposite,  covetousness,  or  cupidity  is  the  surest  means  to  un- 
happiness.  Everybody  is  complaining  of  the  rarity  of  contentment 
and  of  the  prevalence  of  discontent.  Although  the  conception  of  a 

*Page  491. 


DOCTRINE  OF  VIRTUES  AND   DUTIES.  59 

past  golden  age  of  universal  happiness  is  an  optical  illusion,  the 
growing  discontent  among  the  European  peoples  of  the  present 
is  not  an  illusion.  Discontent  increases  in  direct  proportion 
with  inordinate  desire,  for  the  development  of  which  the  con- 
ditions are  unusually  favorable  in  our  age  *  *  *  jg 
there  no  cure  for  this  disease?  We  are  referred  to  the  church 
and  the  restoration  of  its  power.  If  by  this  we  mean,  not 
external  povi^er,  but  an  inner  frame  of  mind,  humihty  and 
piety,  then  there  can  be  no  doubt  that  the  remedy  would  prove 
effective.  Perhaps  nothing  but  true  inner  religiousness  can 
give  us  perfect  peace  in  regard  to  earthly  things."     *     *     * 

*"Again :  if  you  have  children  help  them.  There  are 
two  ways  of  looking  at  life,  one  of  which  will  certainly  make 
it  happy,  the  other  unhappy.  The  first  is  the  habit  of  regard- 
ing everything  good  that  life  yields  as  surpassing  your  ex- 
pectations, and  every  misfortune  as  falling  below  them;  the 
second  is  the  reverse  of  this.  You  have  it  in  your  power  to 
give  your  child  either  mood.  Grant  all  his  wishes,  give  him 
everything  he  sees,  let  him  choose  what  he  ought  to  eat  and 
drink,  what  he  ought  to  do  and  to  leave  undone,  remove  all 
obstacles  from  his  path,  bear  his  burdens  for  him,  praise  his 
ability  and  goodness;  in  short,  be  all  tenderness  and  devotion; 
and  you  may  be  sure  that  he  will,  upon  entering  the  world, 
find  it  hard  and  niggardly;  that  he  will  be  discontented  and 
unhappy.  If  you  are  unwilling  that  this  should  happen,  steel 
your  own  heart,  and  do  not  be  afraid  of  being  called  an  un- 
natural mother  by  all  educated  mothers." 

"Not  long  ago,  I  witnessed  the  following  little  incident: 
Once  there  vvere  two  little  girls,  perfectly  healthy  and  cheerful, 
and  blessed  with  the  best  of  appetites.  They  went  to  visit  an 
aunt,  who  loved  them  very  much,  and  did  everything  she  could  to 
please  them.  She  used  to  ask  them  before  each  meal  what  they 
liked  to  eat,  and  when  the  meal  was  served,  what  they  pre- 
ferred to  have.  Before  two  weeks  had  passed,  these  tw^o  little 
girls  no  longer  enjoyed  their  food;  one  of  them  couldn't  eat  this, 
the  other  couldn't  eat  that;  their  plates  were  always  half  full, 
and  at  the  end  of  every  meal  they  were   discontented  and  in 

*Page  494. 


60  SYSTEM  OF  ETHICS. 

tears.  "How  is  it/'  asked  the  aunt,  when  the  mother  of  the 
two  girls  came  to  see  her,  "that  things  are  so  different  at  home?"* 
"I  will  tell  3'ou,"  she  answered,  "At  home  I  never  ask  them 
what  they  want,  and  never  give  them  as  much  as  they  call  for." 
"Happy  the  man  whom  Fate  treats  in  the  same  way. 
He  that  is  able  to  choose  each  day  what  to  do  and  what  not 
to  do,  he  that  can  have  as  much  as  he  desires  to  have,  will 
soon  tire  of  life.  Hence,  be  thankful  that  you  do  not  get 
everything  you  ask  for;  learn  to  desire,  so  Marcus  Aurelius 
counsels  you,  not  that  things  govern  themselves  according 
to  your  wishes,  but  that  your  wishes  govern  themselves  ac- 
cording to  the  things." 

COURAGE. 

"By  the  side  of  temperance  Greek  philosophy  places 
courage,  the  ability  to  resist  painful,  dangerous,  and  terrible 
impressions  by  means  of  a  rational  will.  The  former  is  the 
normal  conduct,  in  respect  of  pleasure;  the  latter,  of  pain 
and  danger.  We  may,  with  Aristotle,  define  both  virtues  as 
a  mean  between  two  vices :  temperance  is  the  proper  mean 
between  insensitiveness  to  sensuous  enjoyment  and  licen- 
tiousness; courage  the  mean  between  abject  cowardice  and 
blind  foolhardiness." 

"'When  an  animal  finds  itself  threatened  by  a  hostile 
attack,  we  notice  one  of  two  things :  either  the  attack  rouses 
fear  and  impels  it  to  flight ;  or  it  produces  rage  and  rouses 
it  to  defend  itself.  The  latter  behavior  is  pecuHar  to  beasts  of 
prey,  the  former  to  their  victims."    *    *    * 

"*Both  modes  of  conduct  are  also  found  among  men. 
There  are  men  who  run  away  like  sheep  at  the  first  sign  of 
danger.  There  are  others,  on  the  contrary,  who,  like  beasts 
of  prey,  are  straightway  impelled  to  blind  and  ferocious 
attacks,  when  threatened  or  injured.  Both  modes  of  conduct 
are  condemned  by  men,  the  former  as  cowardice,  the  latter 
as  blind  rage  or  foolhardiness.  A  different  kind  of  behavior 
is  required  of  man,  and  that  is  courage.  That  man  is  brave 
who,  when  attacked  and  in  peril,  neither  blindly  runs  away 

*Page  496. 


DOCTRINE  OF  VIRTUES  AND  DUTIES.  61 

nor  rushes  into  danger,  but  retaining  his  composure,  carefully 
and  calmly  studies  the  situation,  quietly  deliberates  and  de- 
cides, and  then  carries  out  his  resolution  firmly  and  ener- 
getically, whether  it  be  resistance  and  attack,  or  defence  and 
retreat.  Prudence,  therefore,  constitutes  an  essential  part  of 
valor."     *     *     * 

"The  origin  of  this  virtue  might  be  explained  biologically, 
as  follows :  The  most  dangerous  enemy  of  man  is  man.  In 
battle  with  this  adversary  courage  has  been  acquired ;  it  is 
the  means  of  defence  against  the  most  fearful  weapon  of 
attack,  the  intellect.  Against  this,  neither  blind  flight  nor 
blind  aggression  will  avail,  as  is  seen  in  the  battle  of  man 
with  animals.  Fear  carries  the  fleeing  ones  into  his  net,  while 
rage  brings  the  ferocious  ones  within  range  of  his  sword 
or  gun.  Such  an  enemy  can  be  resisted  only  by  means  of  the 
same  weapon,  the  intellect ;  that  is,  by  courage,  by  presence 
of  mind  in  battle."     *     *     * 

"Martial  courage  is  the  first  form  in  which  this  quality 
receives  recognition,  perhaps  the  very  first  virtue  which  wins 
admiration.  Courage  is  originally  the  virtue,  cowardice  the 
vice,  as  the  Greek  and  Roman  usage  of  language  attests. 
And  youth  has  no  sincerer  regard  for  any  virtue  than  for 
stern    and    shrewd,    and    especially    magnanimous    courage." 

^      H<      ^ 

*"As  civilization  advances,  other  forms  of  resistance  came 
to  surpass  martial  courage  in  importance.  Chief  among 
these  I  mention  what  might  be  called  civil  courage,  independ- 
ence of  thought,  characterfid  self-assertion  against  the  great 
pressure  exerted  by  superior  and  inferior  forces.  Civilization 
has  the  tendency  to  create  relations  of  dependence ;  depend- 
ence upon  men  takes  the  place  of  dependence  upon  nature; 
dependence  upon  superiors  and  patrons,  friends  and  fellow- 
partizans,  customers  and  voters,  society  and  public  opinion. 
Dependence  has  the  tendency  to  pervert  the  will ;  it  inclines 
the  individual  to  accommodate  himself,  to  let  things  take 
their  course,  to  obsequiousness,  to  cowardly  self-denial,  to 
falsehood  in  every  form.    So  the  moral  duty  arises  to  develop 

*Page  498. 


62  SYSTEM  OF  ETHICS. 

the  inner  power  of  resistance  which  calmly  and  firmly  opposes 
every  attempt  to  subject  the  individual  to  established  customs 
and  authority,  which  serves  and  remains  loyal  to  truth  and 
justice,  regardless  of  whether  such  conduct  brings  favor  and 
popularity  or  disfavor  and  contempt.  To  remain  true  to  ones- 
self,  that  is  the  aim  of  such  ideal  courage.  No  one  can  have 
it,  the  center  of  whose  life  does  not  lie  within  himself;  who- 
ever makes  external  things  his  ultimate  goal  cannot  attain 
to  inner  freedom.  Spinoza  was,  in  his  life  and  teaching,  a 
great  preacher  of  this  doctrine  of  freedom." 

"Another  form  of  courage  is  perseverance  or  persistence, 
the  power  of  the  will  to  accept  and  continuously  to  endure 
all  kinds  of  hardships  and  exertions,  which  are  necessary  to 
realize  one's  ends.  It  is  the  virtue  of  the  working  man. 
Martial  courage  was  the  virtue  of  the  heroic  age ;  perseverance 
is  the  courage  of  the  industrial  age.  It  is  in  this  virtue  that 
the  civilized  man  so  immeasurably  surpasses  the  savage. 
The  savage  is  capable  of  great  momentary  exertions,  but 
not  of  making  a  continued  effort  to  overcome  the  small 
obstacles  in  which  all  work  consists.  A  partial  reason  for 
this  is  his  inability  to  conceive  far-reaching  aims.  Hence, 
as  soon  as  the  momentary  pressure  of  want  or  of  the  natural 
impulse  ceases,  he  yields  to  the  law  of  inertia,  which  also 
governs  living  bodies." 

"The  love  of  order  may  also  be  regarded  as  a  phase  of 
perseverance,  the  habit  of  doing  everything  with  business- 
like regularity;  a  very  valuable  quality,  which  procures  for 
us  freedom  and  tranquility.  The  consequence  of  disorder  is 
confusion,  which  begets  fear  and  trouble.  This  is  especially 
true  of  the  tendency  to  procrastinate.  When  our  work  is 
done  we  feel  at  peace,  but  when  we  put  off  our  tasks  we  are 
constantly  fretting  about  them,  and  are  finally  forced  to  per- 
form them  hastily  and  unsatisfactorily  at  an  inopportune 
time."     *    *     * 

"Patience,  too,  is  related  to  perseverance.  It  is  the  ability 
to  bear  pain  and  suffering  without  being  overcome  by  them. 
We  may  distinguish  two  aspects  of  patience :  a  somewhat 
passive  patience   which   bears  sufferings   without  complaint 


DOCTRINE  OF  VIRTUES  AND  DUTIES.  63 

and  opposition,  and  the  more  active  power  of  the  soul,  the 
ability  to  survive  defeats,  disappointments,  and  losses,  and  to 
begin  life  anew.  Patience  is  feminine  courage.  Both  forms,  espe- 
cially the  former,  are  more  characteristic  of  women  than  of 
men;  women  not  infrequently  display  a  remarkable  capacity 
for  enduring  pain.  This  fact  is  evidently  due  to  the  natural 
difference  of  the  sexes;  women  are  more  experienced  in  all 
kinds  of  suffering  than  men.  A  man's  nature  is  impelled  to 
attack  and  defence :  hence  he  finds  it  more  difficult  to  yield 
to  the  inevitable.  But  active  patience,  too,  the  elastic  resist- 
ance of  the  soul,  is  one  of  the  most  beatuiful  and  valuable 
qualities  of  the  woman.  It  is  harder  for  a  man  to  get  up 
again  after  he  has  met  with  misfortunes.  A  woman  generally 
finds  less  difficulty  in  beginning  anew;  she  soon  begins  to 
hope  and  fear  again,  to  work  and  strive ;  she  has  a  more 
flexible  nature.  Man's  strength  is  more  unbending  and  brittle. 
A  woman  is  also  better  able  to  battle  with  long-continued 
troubles  and  obstacles ;  when  a  man  impatiently  sinks  beneath 
the  load,  she  retains  her  equanimity  and  even  her  cheerful- 
ness. For  that  reason,  woman  is  the  born  guardian  of  youth, 
the  nurse  of  the  sick,  and  the  counselor  of  old  age." 

"Great  patience  in  suffering  is  the  invariable  mark  of  a 
noble  character ;  courage  and  perseverance  may  belong  even 
to  a  selfish  and  malicious  will.  Patient  resignation  in  suffer- 
ing is  a  sign  that  the  violent  natural  impulse  to  life,  which 
rebels  against  suffering,  has  been  broken  and  silenced  by  a 
higher  will.  This  is  why  suft'erings  which  are  accepted  by 
the  heart  and  patiently  borne  are  expiatory." 

"A  third  form  of  self-control  is  calmness,  the  ability  to 
control,  by  the  rational  will,  such  emotions  as  result  from 
disturbances  in  our  relations  with  our  fellow  men  ;  e.  g.,  anger, 
vexation,  ill-humor.'  To  the  lack  of  this  virtue,  and  to  envy 
and  pride,  are  due  most  of  the  disagreeable  annoyances  which 
wear  out  the  lives  of  so  many  men.  Without  the  ability  to 
overcome  the  inevitable  petty  collisions,  intercourse  with 
human  beings  becomes  a  constant  torture." 

"  Tf  you  are  going  to  bathe,'  Epictetus  admonishes  us. 
'place  before  yourself  what  happens  in  the  bath ;  some  splash- 


64  SYSTEM  OF  ETHICS. 

ing  the  water,  others  pushing  against  one  another,  others 
abusing  one  another,  and  some  stealing;  and  then  with  more 
safety  you  will  undertake  the  matter  if  you  say  to  yourself, 
"I  now  intend  to  bathe,  and  to  maintain  my  will  in  a  manner 
conformable  to  nature."  So  it  is  here :  when  you  move  into 
an  apartment  house,  think  of  what  will  happen  there;  the 
neighbor's  dog  wnll  bark,  his  boys  will  romp  around,  his 
daughters  will  play  on  the  piano ;  if  you  cannot  endure  these 
things,  do  not  move  in,  but  build  yourself  a  house  outside  of 
the  city,  be  it  ever  so  modest.  But  if  you  must  move  in,  tell 
yourself  beforehand  that  you  must,  and  yield  to  the  inevit- 
able." 

"Indeed,  it  is  very  strange.  We  know  that  we  must 
always  adapt  ourselves  to  the  nature  of  the  things  which  we 
desire  to  subject  to  our  purposes;  only  when  it  comes  to 
human  beings  do  we  seem  to  forget  it.  A  stone  is  in  my  way. 
I  do  not  scold  it,  but  walk  around  it  or  push  it  aside.  A 
watch  or  a  machine  is  out  of  order;  w^e  do  not  beat  it,  but 
inquire  into  the  cause,  or  hand  it  over  to  an  expert  to  mend 
the  defect.  But  when  a  human  being  fails  to  do  our  bidding, 
when  a  neighbor  displeases  us,  or  a  friend  acts  in  a  manner 
which  we  do  not  consider  right,  when  a  pupil  does  not  know 
his  lesson,  or  the  soup  does  not  taste  right,  we  get  angry 
and  scold.  As  though  abuse  and  anger  were  the  panacea 
for  governing  human  souls !  A  human  soul  is  of  all  things 
in  the  world  the  most  complicated  and  most  difficult  to  handle; 
and  hence  the  art  of  governing  souls  is  the  hardest  of  all  arts. 
And  since  it  is  the  most  important  art  for  our  happiness,  it 
surely  deserves  to  be  studied  with  greater  care.  The  most 
important  thing  in  this  art,  however,  is  the  ability  to  retain 
one's  composure;  only  calm  and  prudent  investigation  will 
succeed  in  discovering  the  causes  of  the  trouble,  and  not 
until  these  have  been  found  can  the  proper  attempts  be  made 
to  remedy  it.  However  this  may  be  brought  about,  whether 
by  instruction,  example,  counsel,  encouragement,  assistance, 
admonition,  entreaty,  threats,  punishment — under  all  circum- 
stances. Bacon's  word  will  hold  good  that  he  alone  can  rule 
Nature  who  obeys  her.     Any  one,  of  course,  can  get  angry 


DOCTRINE  OF  VIRTUES  AND  DUTIES.  65 

and  scold,  but  this  is  merely  a  confession  of  helplessness,  and 
does  not  tend  to  improve  matters ;  nay,  it  is  apt  to  make 
them  worse.  Even  where  punishment  is  the  proper  remedy, 
it  will  be  all  the  more  effective  if  administered  calmly  and 
firmly." 

"The  fruit  of  self-control,  which  reaches  its  completion 
in  the  virtues  of  temperance  and  unpretendingness,  courage  and 
perseverance,  patience  and  tranquility,  is  imter  peace  and  cheer- 
fullness  of  mind.  *  *  *  This  is  not  only  in  itself  the 
greatest  part  of  human  happiness,  but  also  the  source  of 
real  human  pleasures.  The  calm  and  cheerful  soul  is  capable 
of  the  quiet  pleasures  of  reflection :  the  forms  of  things  are 
mirrored  best  in  the  tranquil  lake.  The  social  duties  thrive 
in  the  contented  heart — justice,  veracity,  tenderness,  benev- 
olence, faithfulness ;  and  from  these  in  turn  spring  the  joys 
which  friendship  and  domestic  happiness  yield." 

"This  is  the  path  which  leads  to  self-preservation  and 
welfare.  Wisdom  is  needed  to  find  and  follow  it.  Hence,  all 
peoples  praise  wisdom  as  the  great  guide  of  life.  The  royal 
sage  of  the  Hebrews  mingles  his  praises  with  those  of  the 
Greek  philosophers :  "Happy  is  the  man  that  findeth  wisdom, 
and  the  man  that  getteth  understanding.  For  the  merchan- 
dise of  it  is  better  than  the  merchandise  of  silver,  and  the 
gain  thereof  than  fine  gold.  She  is  more  precious  than  rubies ; 
and  all  the  things  thou  canst  desire  are  not  to  be  compared 
unto  her.  Length  of  days  is  in  her  right  hand;  and  in  her 
left  hand  riches  and  honor.  Her  ways  are  ways  of  pleasant- 
ness, and  all  her  paths  are  peace.  She  is  a  tree  of  life  to  them 
that  lay  hold  upon  her;  and  happy  is  every  one  that  retaineth 
her.  The  Lord  by  wisdom  has  founded  the  earth ;  by  under- 
standing hath  he  established  the  heavens."* 


*Proverbs  111,   13-19. 


CHAPTER  V. 

THE  BODILY  LIFE — FOOD  AND  DRINK — HABITATION   AND  CLOTHING 
— REST   AND  RECREATION. 

THE   ECONOMIC   LIFE — PROFESSION   OR   VOCATION — FRUGALITY   AND 

EXTRAVAGANCE. 

*"The  function  of  the  body  is  to  serve  as  the  organ  and 
symbol  of  the  soul.  There  is  no  difference  of  opinion  concern- 
ing this  practical  estimate  of  the  two  phases  of  man's  nature. 
Even  the  materialist,  who  regards  the  soul  as  a  passing  func- 
tion of  matter,  will  accept  our  proposition ;  for  him,  too,  the 
body  is  the  servant  of  the  soul.  Every  one  is  likewise  agreed 
as  to  what  constitutes  a  good  servant.  To  accomplish  and 
endure  much  and  to  demand  little — these  are  the  qualities 
which  we  all  consider  valuable  in  a  servant.  These  also 
determine  what  is  desirable  in  a  body;  the  healthy,  strong, 
and  hardened  body  endures  much  and  wants  little ;  the  sickly, 
weak,  and  pampered  body  does  little  and  makes  great  de- 
mands. Hence  follows  the  rule  of  duty:  Do  what  is  suited 
to  preserve  and  increase  the  health  and  strength  of  the  body ; 
avoid  what  impairs  and  weakens  it.  The  other  function  of 
the  body  is  to  express  or  symbolize  psychical  life.  Beauty  and 
grace  are  the  visible  corporeal  manifestations  of  a  good  and 
beautiful  soul.  Grace  is  acquired  beauty ;  the  quiet  security 
of  the  soul  which  is  master  of  itself  is  reflected  in  quiet,  steady 
and  appropriate  movements.  Hence  follows  the  rule  of  duty : 
Educate  the  body,  so  that  it  may  appear  in  this  visible  world 
as  a  pleasing  expression  of  the  invisible  beauty  of  the  soul." 

"It  must  be  left  to  dietetics  and  gymnastics  to  develop 
these  general  formulae  into  a  system  of  rules.  *  *  *  i 
shall  merely  touch  upon  a  few  phases  of  the  problem." 

"Let  us  first  consider  the  question  of  nutrition.  It  is 
characteristic  of  human  beings  to  prepare  their  food  arti- 
ficially and  they  do  it  universally  with  the  aid  of  fire.  The 
use  of  fire  for  this  purpose  plays  an  important  part  in  the 


*Paulsen,  page  505. 


THE   BODILY  AND   ECONOMIC   LIFE.  67 

emancipation  of  man  from  nature.  Whereas,  the  animal  is 
Hmited  to  the  territory  producing  the  plants  or  animals  upon 
which  it  feeds,  and  is  itself  a  product  thereof,  man  has  made 
himself  lord  of  the  earth ;  everywhere  he  finds  what  may, 
with  the  help  of  fire,  be  converted  into  food.  In  other  re- 
spects, also,  the  use  of  fire  in  the  preparation  of  food  has 
exercised  an  important  influence  upon  the  development  of 
human  life.  Wundt  calls  attention  to  the  fact  that  by  neces- 
sitating the  common  preparation  of  certain  foods,  it  at  the 
same  time  led  to  their  common  consumption ;  to  it  we  owe 
the  origin  of  the  common  meal  at  the  hearth.  With  the  meal 
is  connected  the  sacrificial  worship,  growing  out  of  the 
funeral  feasts;  the  hearth  becomes  the  altar.  The  meal, 
coming  at  regular  intervals  and  dividing  the  day,  also  leads 
to  the  first  division  of  time.  The  child  still  receives  its  first 
lessons  in  the  discipline  of  the  animal  desires  by  governing 
its  appetite  according  to  the  meals." 

"Let  me  add  a  w^ord  or  two  concerning  degeneracy  in 
nourishment.  In  emancipating  himself  from  the  natural  guid- 
ance of  instinct,  which  controls  and  likewise  preserves  the 
animal,  man  exposes  himself  to  aberrations.  The  palate  is 
stimulated  by  artificially  prepared  food,  and  the  reception  of 
food  excites  pleasure  even  when  it  is  not  needed.  Gluttony 
and  hoggishness  are  universally  characterized  by  the  perver- 
sion of  the  organs  of  nutrition  into  organs  of  pleasure.  It 
appears  that  such  abuse  never  occurs  among  animals,  but 
that  among  human  beings  it  is  common  to  all  ages  and  to  all 
peoples.  Travelers  bring  us  horrible  reports  of  the  coarse 
forms  of  gluttony  practiced  by  uncivilized  tribes.  All  of 
these  seem  also  to  have  hit  upon  the  manufacture  of  intoxi- 
cating liquors,  or  to  have  introduced  them  into  their  countries 
from  abroad." 

"Everybody  knows  to  what  extent  the  life  of  modern 
civilized  nations  is  devastated  by  drunkenness.  It  seems  that 
the  Germanic  nations  have  from  time  immemorial  been  more 
predisposed  to  this  vice  than  the  Romance  peoples,  which  is. 
perhaps,  to  be  explained  by  conditions  of  climate.  In  certain 
parts  of  Germany  a  considerable  part  of  the  male  population 


68  SYSTEM  OF  ETHICS. 

is  directly  ruined  by  drunkenness,  and  there  is  no  country 
in  which  this  vice  does  not  cause  the  most  serious  disturb- 
ances. The  immediate  effects  of  drunkenness  are  these :  the 
economic  Hfe  becomes  unsettled,  family  life  is  neglected  and 
destroyed,  the  moral-spiritual  life  is  brutahzed  and  debauched. 
Pauperism,  crime,  a  host  of  diseases,  insanity,  suicide,  degen- 
eracy of  offspring,  follow  in  its  melancholy  wake." 

"The  conviction  is  growing  among  earnest  and  thought- 
ful men  that  a  very  serious  danger  here  confronts  the  future 
progress  of  civilized  peoples.     How  shall  we  meet  it?" 

Paulsen  covers  eight  pages  with  a  discussion  of  the  drink- 
mg  and  tobacco  habits  in  Germany,  and  some  of  the  other 
countries  of  Northern  Europe,  and  the  laws,  and  the  moral 
and  social  influences  by  which  it  has  been  sought  to  diminish 
the  prevalence  of  these  evils. 

In  this  country  there  has  been  a  constant  controversy 
for  sixty  years  past  between  the  advocates  of  a  total  prohibi- 
tion of  the  sale  of  intoxicating  liquors  and  those  who  advo- 
cate a  more  or  less  severe  control  and  supervision  of  such 
sales,  by  a  high  licese,  the  prohibition  of  selling  liquor  to 
minors  or  drunkards,  the  closing  of  saloons  at  midnight  or  1 
a.  m.,  as  in  Chicago,  and  other  restrictive  measures.  (I  believe 
there  are  now  but  few  who  would  openly  advocate  leaving 
the  sale  of  liquors  as  free  as  that  of  groceries  and  meats.) 
The  wisest  public  policy  respecting  the  liquor  traffic  will 
vary  in  different  communities,  for  the  simple  reason  that  the 
question  of  what  ought  to  be  done  can  only  be  answered  after 
finding  out  what  can  be  done.  The  principle  of  action  should 
be  to  adopt  the  most  restrictive  laws  that  can  be  made  rea- 
sonably effective  in  administration.  This  can  be  helped  by 
an  extension  of  the  privilege  of  local  option,  which  should  be 
allowed  in  small  units  of  territory,  so  that  a  township,  a 
precinct,  even  a  single  city  block  (the  two  sides  of  a  street 
between  two  intersecting  streets)  should  have  the  power,  by 
a  majority  vote  of  the  inhabitants,  to  exclude  liquor  saloons 
from  that  particular  territory.  Everything  should  be  done 
that  can  be  done  by  the  enforcement  of  good  laws,  for  tht 
prevention  and  control  of  drunkenness,  but  the  chief  depend- 


THE  BODILY  AND   ECONOMIC   LIFE.  69 

eiice  for  the  prevention  or  reform  of  bad  personal  habits  of 
any  sort  must  be  upon  moral  and  social  influences,  and  these 
should  always  be  made  as  potent  as  possible  by  every  right 
thinking  man  and  woman. 

A  potent  social  influence  for  evil  in  this  country  is  the 
custom  of  "treating,"  which  means  that  each  man  in  the  company 
in  succession  buys  the  drinks  for  all  the  company,  with  the 
implied  social  pressure,  if  not  a  recognized  obligation,  that  each 
shall  drink  each  time  round.  If  there  is  a  considerable  number 
in  the  company,  excessive  drinking  is  inevitable.  It  is  an  absurd 
custom  and  all  right-minded  men  should  refuse  to  be  governed 
by  it,  for  it  is  every  man's  right  and  privilege,  and  also  his  duty 
(and  is  never  a  breach  of  really  good  manners)  to  control  his 
personal  habits  in  respect  to  food,  drink,  and  clothing,  in  con- 
formity with  his  own  needs  and  welfare.  There  is  another  form 
of  treating  somewhat  prevalent  among  temperate  people  to  which 
but  little  serious  objection  need  be  made;  this  is  for  one  person 
to  invite  the  company,  or  several  members  of  it,  to  go  to  the  bar 
and  drink  with  him  before  sitting  down  to  dinner.  In  this  case 
no  one  drinks  but  once  and  each  exercises  his  own  choice  as  to 
what  he  will  drink,  and  may  take  a  whiskey,  a  cocktail,  a  beer 
or  ale,  or  a  lemonade  or  mineral  water.  This  custom  takes 
cognizance  of  the  fact,  which  ought  never  to  be  forgotten,  that 
intoxicating  liquors  should  not  be  taken  except  at  meal  times 
(if  they  are  to  be  taken  at  all).  There  is  another  matter  of 
importance  concerning  the  drink  habit :  It  is  well  known  that 
those  who  have  once  been  slaves  of  drink  and  have  freed  them- 
selves from  such  bondage,  find  it  necessary  ever  afterwards  to  be 
strict  total  abstainers,  for  the  smallest  taste  of  liquor,  or  some- 
times even  the  smell  of  it,  is  liable  to  awaken  the  old,  uncon- 
trollable thirst.  It  is,  therefore,  a  most  urgent  duty  of  everyone 
knowing  about  such  people  carefully  to  avoid  putting  temptation 
to  drink  in  their  way,  and  if  they  find  such  people  in  places  or 
circumstances  subjecting  them  to  temptation,  every  efifort  should 
be  made  to  get  them  away  from  it  and  to  support  their  will 
power  in  resisting  it. 

The  injury  from  the  use  of  either  liquor  or  tobacco  is  very 
much  greater  to  growing  boys  than  to  mature  men.    Every  boy. 


70  SYSTEM  OF  ETHICS. 

therefore,  who  wishes  to  attain  his  maximum  of  growth,  health, 
strength  and  efficiency,  should  religiously  abstain  from  all  sorts 
of  liquors,  even  from  beer  and  wine,  and  from  all  forms  of 
tobacco,  at  least  till  he  is  twenty-one  years  of  age.  The  con- 
sumption in  the  United  States  of  both  liquor  and  tobacco  is 
enormous  and  most  deplorable.  Liquor  drinking  is  undoubtedly 
far  more  injurious  and  destructive  in  the  aggregate  than  the 
use  of  tobacco,  but  the  latter,  even  if  it  can  be  conceded  that  it 
is  sometimes  beneficial  to  some  individuals  (which  may  admit 
of  doubt),  must  be  regarded  as  doing  far  more  harm  than  good. 
Together,  the  liquor  and  tobacco  habits  constitute  by  far  the 
largest  part  of  the  economic,  moral,  and  spiritual  zvaste  of  which 
our  aggregate  population  is  guilty. 

HABITATION. 

"The  dwelling,  originally  a  protection  against  heat  and  cold 
as  well  as  against  hostile  attacks,  has  gradually  far  outgrown 
its  original  purpose :  the  cave,  the  tent,  the  hut,  the  house,  the 
burg,  the  city — mark  the  stages  of  its  evolution.  Its  mission  has 
been  enlarged  so  as  to  embrace  the  whole  of  civilized  life.  What 
clothing  is  to  the  individual,  the  domicile  is  to  the  family.  Within 
the  walls  of  the  house  the  family  finds  protection  against  all 
kinds  of  annoyances,  and  seeks  refuge  from  inquisitive  curiosity 
and  insatiate  greed.  In  the  home  it  reveals  its  character;  the 
occupation,  the  mode  of  life  and  thought  of  the  family  are 
expressed  in  the  form,  furniture,  and  decoration  of  the  house. 
The  memories  of  the  past,  both  joyful  and  sorrowful,  cling  to 
it,  and  so  the  dwelling  becomes  the  necessary  framework  of  the 
family  history.  It  is  no  less  apparent  that  the  development  of 
great  historical  institutions  is  closely  connected  with  the  evolution 
of  the  home;  without  the  dividing  walls  of  the  individual's  own 
hut,  we  cannot  imagine  the  separation  of  the  particular  families 
from  the  original  herdlike  unity  of  the  horde.  The  evolution 
of  property  rights  is  doubtless  also  closely  related  to  the  same 
dividing  walls.  Moreover,  by  the  side  of  the  human  dwelling 
erected  by  the  individual  rises  the  house  of  the  gods,  the  temple, 
which  has  proved  so  stimulating  to  religion  and  the  arts.  The 
temple  has  also  had  a  great  influence,  as  Wundt  remarks,  upon 


THE   BODILY  AND   ECONOMIC   LIFE.  71 

the  evolution  of  the  sense  of  justice.  The  peace  of  God  made 
the  temple  the  refuge  for  fugitives.  The  temple-peace  reacted 
upon  the  development  of  the  house-peace :  the  gods  avenged  its 
breach,  whether  the  offense  were  committed  against  the  host 
or  against  the  guest.  Again,  the  first  notions  of  international 
law  owed  their  origin  to  the  reverence  the  tribes  felt  for  the 
temples  of  kindred  gods." 

"One  of  the  most  deplorable  results  of  the  recent  develop- 
ment of  social  life  is  the  forced  abandonment  by  larger  and 
larger  portions  of  the  population  of  the  dwelling  as  the  perma- 
nent home  for  the  particular  family,  and  the  crowding  together 
of  great  masses  of  people,  who  are  unknown  to  each  other,  into 
the  tenement  houses  of  our  large  cities.  *  *  *  j^  would  be 
a  great  blessing  if  the  modern  means  of  transportation  could  be 
so  perfected  as  again  to  disperse  the  crowds  of  people  whom 
they  have  poured  into  the  large  cities.  Many  families,  who  are 
at  present  living  in  crowded  tenement  houses,  to  their  great 
injury,  could,  even  now,  if  they  so  desired,  and  ceased  regard- 
ing a  bad  habit  as  a  natural  necessity,  occupy  their  own  homes 
in  the  suburbs."     *     *     * 

CLOTHING 

"The  original  purpose  of  clothing  was  partly  to  protect, 
partly  to  decorate  the  body  and  to  reveal  the  importance  of  the 
wearer.  Its  negative  object  was  to  conceal  the  animal  portions 
of  the  body,  leaving  only  the  face,  the  symbol  of  the  spiritual 
powers,  uncovered.  Dress  has  retained  this  dual  nature  in  the 
vicissitudes  of  historical  life.  The  costume  symbolizes  rank  and 
office,  age  and  sex,  joy  and  sorrow,  temperament  and  mode  of 
thought,  time  and  people.  By  means  of  clothing,  the  historical 
and  social  position  of  the  individual  is  constantly  impressed  upon 
him  and  his  surroundings.  Indeed,  we  may  say  that  dress  is  so 
essential  that  historical  life  and  social  order  cannot  be  imagined 
without  it ;  naked  men  are  unhistorical  men.  Sameness  of  ex- 
terior marks  brutes  as  unhistorical  beings,  dissimilarity  in  dress 
is  the  outward  manifestation  of  historical  and  social  beings. 
Hence,  historical  changes  in  the  life  of  nations  reveal  themselves 
in  changes  of  costume ;  try  to  imagine  Luther  in  a  swallow-tail 
coat  and  a  white  cravat,  or  Goethe  with  a  moustache  and  a  cut- 


n  SYSTEM  OF  ETHICS. 

away,  and  you  will  see  that  dress  is  as  characteristic  of  man  as 
an  historical  being  as  its  skin  is  of  the  animal.  The  abolition 
of  the  old  class  distinctions  and  the  leveling  tendency  of  the 
nineteenth  century  clearly  manifest  themselves  in  the  disappear- 
ance of  class  costumes.  On  the  other  hand,  the  dress  of  the 
state,  the  uniform,  has  become  more  prominent;  distinctions 
spontaneously  created  by  society  are  giving  way  to  distinctions 
made  by  the  state.  Furthermore,  the  uniform  is  an  excellent 
means  of  uniforming  and  controlling  the  inner  man.  It  compels 
the  wearer  to  represent  the  office  and  to  obey  orders;  he  cannot 
retreat,  he  must  seem  to  be  what  the  uniform  proclaims  him  to  be, 
and  so  becomes  it.  What  would  an  army  be  without  uniforms?" 
"The  difference  between  costume  and  fashion  consists  in 
this :  the  latter  is  an  arbitrary  invention  of  particular  individuals 
and  lasts  only  for  a  short  time.  Its  climax  is  marked  by  the 
complete  decline  of  costume.  Fashionable  attire  differentiates 
its  wearer,  makes  a  'distinguished'  person  of  him,  not  so  much 
because  it  is  a  sign  of  taste,  wealth  or  costliness,  but  because 
it  creates  the  impression  that  he  is  a  leader  in  society  or  that 
he  stands  close  enough  to  the  leaders  to  notice  the  changes 
immediately  and  to  keep  pace  with  them ;  hence,  also,  the  need 
of  rapid  changes.  Fashion  is  the  feminine  form  of  sport  or 
speculation,  and  is,  like  all  sport,  capricious  and  tyrannical,  stim- 
ulating its  followers  to  do  their  best.  The  health  and  welfare 
of  many  a  woman,  the  peace  and  happiness  of  many  a  home, 
are  sacrificed  to  this  tyrant  without  a  murmur.  Should  the 
psychologist  succeed  in  inventing  a  process  for  the  transforma- 
tion of  psychical  forces — as  the  physicist  has  for  changing  ther- 
mal or  electrical  forces  into  motion — and  should  the  process 
ever  succeed  in  converting  but  one-half  of  the  energy  which  the 
women  who  obey  the  dictates  of  fashion  expend  in  destroying 
their  comfort,  welfare  and  freedom,  into  other  forces  of  self- 
sacrifice,  the  invention  would  presumably  produce  a  greater 
increase  in  real  happiness  among  civilized  humanity  than  all  the 
inventions  of  this  century  put  together." 

EXERCISE. 

"Another  part  of   dietetics   is   the   development  and   exer 
cise  of  bodily  poivers.     Life  is,  according  to  Aristotle,  action ; 


THE  BODILY  AND   ECONOMIC  LIFE.  7i 

the  body  deteriorates  when  it  cannot  act.  These  powers  are 
exercised  in  two  ways :  in  play  and  in  work.  Work  is  the  exer- 
cise of  powers  for  an  external  end ;  in  play  the  activity  is  an 
end  in  itself;  it  has  no  end  outside  of  itself;  it  is  free  activity; 
while  work  is  constrained  or  unfree  action.  Play  is  especially 
characteristic  of  youth.  In  the  life  of  the  adult  it  is  overshad- 
owed by  work ;  but  it  is  not  wanting  here  and  cannot  be  wanting 
without  depriving  life  of  an  essential  element.  A  country  con- 
sisting entirely  of  fertile  cultivated  fields  would  not  wholly  please 
us;  we  should  miss  the  heaths  and  the  forests,  the  moor  and 
the  wilderness ;  we  should  miss  the  poetry  of  freedom.  Nor 
would  a  life  please  us  that  consisted  wholly  of  useful  work: 
without  play  it  would  be  without  the  poetry  of  freedom." 

"It  cannot  be  denied  that  with  the  advance  of  civilization, 
certain  dangers  are  threatening  life  from  this  side.  The  sphere 
of  play  is  becoming  more  and  more  restricted,  and  work  is  grow- 
ing more  monotonous  and  mechanical.  In  primitive  stages  of 
civilization,  work  is  freer  and  more  varied;  it  has  something 
of  the  character  and  charm  of  play.  That  this  is  true  may  be 
seen  from  the  fact  that  civilized  men  indulge  in  hunting  and 
fishing  as  a  kind  of  play  and  sport.  ^Agricultural  pursuits,  too, 
are  quite  free  and  full  of  change ;  each  season  yields  new  forms 
of  action.  The  peasant  practices  a  hundred  arts ;  he  handles 
numberless  tools  and  comes  in  daily  contact  with  a  thousand 
living  and  lifeless  things.  The  work  of  the  mechanic  is  not  so 
free ;  he  is  tied  to  his  workshop ;  the  circle  of  his  activities  is 
narrow ;  his  work  consists  rather  in  the  constant  repetition  of 
the  same  performance,  which  consequently  becomes  more  me- 
chanical. He  is  not  so  dependent  on  nature,  upon  the  weather 
and  the  seasons,  but  more  dependent  upon  human  beings."     *     * 

"The  greatest  sufferers  are  the  young,  and  those  of  the 
higher  classes  perhaps  suffer  most,  because  they  are  subjected 
to  such  conditions  for  a  greater  length  of  time.  The  truth  that 
life  is  movement  is  especially  applicable  to  the  young.  Their 
impulses  are  directed  towards  the  exercise  of  bodily  powers ; 
they  desire  to  run  and  to  climb,  to  jump  and  to  dance,  to  build 
and  to  destroy.  There  is  neither  room  nor  opportunity  for  such 
action  in  the  'flat.'     Free  and  unimpeded  play  is  utterly  impos- 


74  SYSTEM  OF  ETHICS. 

sible.  *  *  *  In  polite  society  the  child,  instead  of  playing, 
is  taken  out  for  a  stroll  by  the  governess,  or  goes  to  the  doll 
bazaar,  or  attends  a  children's  party.  But  all  these  artificial 
things  do  not  satisfy  our  children,  and  inasmuch  as  their  love 
of  movement  and  exercise  cannot  be  suppressed,  they  are  in 
the  way  in  the  metropolitan  household.  Under  these  circum- 
stances, the  school  proves  to  be  a  veritable  refuge :  there  they 
are  taken  care  of  and  kept  busy  for  a  number  of  hours  each 
day,  and  then  a  few  more  hours  are  consumed  at  home  in  pre- 
paring lessons.  Among  the  upper  classes  a  few  more  lessons  in 
music  and  drawing  are  deemed  indispensable,  and  afterwards  a 
few  more  hours  are  devoted  to  novel-reading  and  card-playing. 
And  so  it  happens  that  young  people,  from  fifteen  to  twenty 
years  of  age,  at  a  time  when  the  body  needs  most  exercise, 
spend  ten,  twelve,  or  fourteen  hours  sitting  down,  until  the  body 
gradually  becomes  accustomed  to  it,  and  the  desire  for  exercise 
gives  way  to  a  general  feeling  of  torpor.  In  this  way  the  foun- 
dation is  laid,  during  the  period  of  youth,  for  the  ailments  by 
which  the  members  of  good  society  might  easily  recognize  each 
other  in  case  all  the  other  charcateristics  should  ever  disappear : 
indigestion,  nervousness,  and  near-sightedness.  And  all  the 
physicians  and  watering  places  in  the  world  cannot  restore  what 
nature  gratuitously  bestows  upon  him  who  keeps  her  command- 
ments: namely,  a  state  of  healthy  exhaustion  and  a  sound  sleep, 
a  good  appetite  and  good  digestion."     *     *     * 

RECREATION. 

"In  conclusion,  let  me  allude,  in  a  few  words,  to  the  opposite 
of  action,  to  rest  and  recreation.  Activity  means  expenditure 
of  energy;  hence  nature  demands  that  activity  be  suspended  in 
order  that  the  loss  may  be  restored.  Regular,  long  periods  of 
rest  for  the  entire  psycho-physical  system  follow  the  changes  of 
day  and  night.  Jewish  tradition  has  established  an  additional 
period  of  rest  in  the  Sabbath.  This  is  a  highly  beneficial  insti- 
tution :  one  that  is  so  interwoven  with  our  life  and  feelings  as 
to  seem  like  a  part  of  the  natural  order  itself.  How  was  it 
possible  for  the  Greeks  and  Romans  to  live  without  their  Sun- 
day?   Finally,  during  more  recent  years,  it  has  become  customary 


THE   BODILY  AND   ECONOMIC   LIFE.  75 

for  those  engaged  in  the  higher  pursuits  to  lay  down  their  work 
for  longer  intervals;  vacations,  which  were  originally  confined 
to  schools,  have  gradually  extended  to  other  circles.  The  need 
for  them  evidently  grows  as  the  work  becomes  more  arduous, 
systematic  and  monotonous.  Hence,  it  is  to  be  assumed  that 
greater  portions  of  the  population  will  be  affected  by  the  custom." 

"Periods  of  rest  have  a  double  purpose :  first,  the  restoration 
of  consumed  energy;  secondly,  the  exercise  of  functions  not 
employed  in  the  regular  calling.  The  latter,  too,  is  recreation. 
Those  whose  calling  makes  especial  demands  upon  their  mental 
powers  will  find  recreation  in  the  proper  exercise  of  their  bodily 
powers,  in  play,  in  travel,  in  mechanical  activity;  those,  on  the 
other  hand,  whose  work  chiefly  calls  into  play  physical  forces 
will  find  relief  in  mental  activity,  in  reading.  Social  pleasures, 
music,  games  of  all  kinds,  are  excellent  means  of  recreation  for 
all  alike." 

"A  proper  balance  between  work  and  recreation  is  an  essen- 
tial condition  of  health,  efficiency,  and  happiness.  An  excess  on 
either  side  is  equally  dangerous.  It  is  now  universally  admitted 
that  the  development  of  industrial  production  has  led  to  an  intol- 
erable excess  of  mechanical  work.  The  efforts  of  the  labor  party 
to  shorten  the  working  time  merit  our  entire  approval.  Work 
must  not  make  a  slave  of  man,  but  should  enable  him  not  only 
to  acquire  commodities,  Init  to  develop  his  powers.  He  should 
not  be  a  mere  tool,  but  a  personal  end  in  himself.  When  this 
becomes  impossible,  when  daily  labor  leaves  only  time  enough 
for  the  necessary  animal  functions  of  nutrition  and  sleep,  man's 
life  ceases  to  be  a  human  life." 

A  very  important  part  of  education  consists  in  the  forma- 
tion of  good  habits  of  living.  This  training  should  be  begun 
immediately  after  birth  by  the  regular  and  proper  feeding  of 
the  young  infant,  and  a  fair  amount  of  wisdom  and  attention 
on  the  part  of  parents,  nurses,  and  teachers  during  the  forma- 
tive period  of  childhood  should  result,  by  the  time  the  child 
is  ten  or  twelve  years  old,  in  the  establishment  of  a  wholesome 
routine  of  bodily  habits  and  functions  that  will  prove  a  good 
foundation  upon  which  the  youth,  between  that  time  and,  say, 
twenty  years  of  age,  may  consciously  acquire  such  self-control 


It  SYSTEM  OF  ETHICS. 

and  wisdom  in  the  ordering  of  his  own  life  as  may  pretty  well 
insure  health  and  long  life,  except  as  life  may  be  endangered 
by  what  may  be  called  accidental  diseases  or  injuries.  Good 
habits  of  bodily  life  relate,  first,  to  the  character  and  amount 
of  food  taken  and  the  manner  of  taking  it;  the  latter  especially 
is  very  important,  and  meals  should  be  eaten  at  regular  times 
as  nearly  as  practicable,  and  food  should  be  thoroughly  chewed 
and  mixed  with  saliva  before  it  is  swallowed.  (The  teachings 
and  example  of  Horace  Fletcher  in  regard  to  the  manner  of 
eating  have  benefited  a  great  number  of  people,  and  it  is  much 
to  be  desired  that  the  whole  population  should  form  such  habits 
as  he  recommends.) 

This  fundamental  requirement  of  long-continued  good 
health  makes  it  imperative  that  a  good  chewing  apparatus  should 
be  acquired  and  preserved,  which  can  only  be  done  in  most  cases 
by  the  faithful  cooperation  of  the  dentist  and  the  individual  from 
childhood.  It  is  very  important,  also,  that  food  be  not  mixed 
and  contaminated  with  fermenting  or  decomposing  remnants  of 
food  left  over  in  the  mouth  from  previous  meals.  It  is  impor- 
tant, moreover,  to  abstain  from  eating  except  at  meal  times.  The 
much  too  prevalent  habits  of  taking  candy,  or  sweetmeats  or 
almost  any  sorts  of  food  or  drinks  that  may  happen  to  be  con- 
venient (except  water,  which  may  be  taken  freely  at  almost  any 
time)  at  any  hour  of  day  or  night  is  very  injurious  and  pretty 
surely  brings  its  punishment  sooner  or  later,  though  young  people 
are  often  able  to  stand  a  great  deal  of  abuse  of  this  sort  without 
evil  effects  that  they  become  much  conscious  of,  and  when  the 
evil  consequences  do  manifest  themselves  so  as  to  force  atten- 
tion, such  effects  are  often  attributed  to  the  wrong  causes. 

Next  in  importance  to  eating  proper  food  in  a  proper  manner 
is  an  abundant  supply  of  pure  air  and  a  good  habit  of  breathing 
it.  Filling  the  lungs  to  their  capacity,  repeated  a  number  of 
times  in  succession,  and  several  times  every  day,  in  pure  outdoor 
air  when  possible,  will  do  very  much  to  ward  off  infections  of 
tuberculosis  or  pneumonia,  and  to  promote  the  elimination  of 
toxic  matters  which  accumulate  in  the  blood,  thus  helping  to 
keep  the  mind  awake  and  alert,  and  the  disposition  cheerful. 
The  movements  of  the  diaphragm  and  abdominal  muscles  in  deep 


THE  BODILY  AND  ECONOMIC  LIFE.  71 

breathing  will  also  help  digestion.  The  control  of  a  suflicieni 
supply  of  pure  air  at  the  right  temperature  is  not  so  surely  or 
easily  under  individual  control  as  are  habits  of  eating  and  breath- 
ing, but  most  persons  can  do  it  at  night  by  opening  windows, 
and  when  sleeping  the  temperature  can  be  very  much  lowered 
without  injury  or  discomfort.  Every  one  should  use  such 
opportunities,  influence,  or  authority  as  he  may  possess  toward 
procuring  proper  ventilation  and  heating  for  himself  and  others 
with  whom  he  is  associated.  (This  is  not  the  place  to  discuss 
Problems  of  heating  and  ventilation.) 

The  problem  of  supplying  sufficient  moisture  in  air  artifi- 
cially heated  is  important,  also,  and  practically  rather  difficult. 
If  air  at  a  temperature  of  70  degrees  F.  and  saturated  with  mois- 
ture be  cooled  to  zero,  it  will  part  with  a  very  large  proportion 
of  its  water,  which  will  be  deposited  in  dew  or  rain  or  snow.  The 
capacity  of  air  to  absorb  moisture  is  so  greatly  increased  by 
warming  it  that  even  a  saturated  atmosphere  at  20  degrees  or 
lower  will  be  much  too  dry  for  wholesome  breathing  when 
heated  to  70  degrees.  The  colder  it  is  out  of  doors,  the  dryer 
it  will  be  in  the  house,  and  if  the  cold  air,  instead  of  being  satu- 
rated, has  only  60  to  70  per  cent  of  humidity,  it  becomes  corre- 
spondingly dryer  after  being  warmed.  As  a  matter  of  fact,  in 
ordinary  houses  and  offices,  etc.,  heated  by  steam  or  hot-water 
coils,  the  air  all  winter  is  much  dryer  than  the  dryest  air  of  the 
western  desert  plains.  It  seems  pretty  certain  that  the  excessive 
heat  and  dryness,  together  with  the  foulness  of  the  air  due  to 
imperfect  ventilation,  contrasted  with  the  coldness  and  moisture 
of  the  out-of-doors  air,  are  chiefly  responsible  for  the  much 
greater  prevalence  of  colds,  catarrhs,  influenzas,  tonsilitis,  grippe, 
and  pneumonia  in  winter  and  spring  as  compared  with  the  sum- 
mer and  autumn.  The  solution  of  the  problem  how  to  moisten 
the  warmed  air  sufficiently  is  not  altogether  easy,  and  has  in 
most  cases  received  very  little  attention.  Houses  heated  by  a 
hot-air  furnace  usually  have  a  pan  of  water  adjacent  to  the  fire- 
pot,  which  may  evaporate  from  two  to  four  gallons  a  day — 
which  helps  some — but  is  only  a  fraction  of  what  is  needed. 
The  water  pan  should  be  much  larger,  exposing  greater  evapo- 
rating surface,  or  be  close  enough  to  the  fire  to  boil  the  water. 


78  SYSTEM  OF  ETHICS. 

which  would  probably  increase  the  evaporation  sufficiently.  If 
heating  is  by  steam  or  hot-water  coils,  it  is  still  worse,  as  usually 
managed.  If  sufficient  water  can  be  boiled,  allowing  the  steam 
to  escape  into  the  rooms,  that  will  solve  the  difficulty  or  if  a 
small  jet  of  steam  can  be  allowed  to  escape  from  the  coils,  not 
more  than  will  be  absorbed  by  the  air  without  condensing  in 
a  drip,  that  would  moisten  the  air. 

Cleanliness  is,  of  course,  of  the  utmost  importance.  The 
morning  bath  of  cold  water  is  hardening  and  invigorating  for 
those  who  react  promptly  and  find  it  agreeable,  but  for  cleanli- 
ness, a  bath  with  warm  water  and  soap  is  needed,  preferably 
at  bedtime. 

It  is  an  excellent  habit,  just  before  retiring,  to  wash  face, 
neck,  and  hands,  and  to  thoroughly  clean  teeth,  mouth,  throat, 
and  nose,  and  to  repeat  the  same  on  rising  in  the  morning. 
Such  habits  of  cleanliness  are  necessary  for  personal  health  and 
comfort.  A  dentist  or  physician  is  so  constantly  in  close  prox- 
imity to  other  people  that  scrupulous  personal  cleanliness  and 
frequent  changes  of  underclothing  are  more  necessary  from  a 
business  point  of  view  than  for  men  in  many  other  occupations. 
And  it  is  very  needful  that  personal  linen,  office  coats,  and  all 
towels,  napkins,  and  similar  articles  about  the  office  should  be 
as  nearly  immaculate  as  possible. 

A  sufficient  amount  of  physical  exercise  is  as  necessary  for 
health  and  long  life  as  personal  cleanliness.  The  daily  routine 
of  a  dental  practice  requires  a  much  greater  amount  and  variety 
of  physical  exertion  than  that  of  a  lawyer,  a  banker,  a  book- 
keeper, and  many  other  employments  that  might  be  named,  but 
it  is  not  sufficient  unless  supplemented  by  regular  or  occasional 
exercise  of  some  sort  in  the  open  air.  Probably  the  most  certain 
and  satisfactory  way  to  get  it  is  in  the  ordinary  routine  of  living ; 
by  walking  back  and  forth  to  the  office  or  to  trains,  taking  care 
of  the  furnace,  cutting  kindling,  shoveling  snow,  making  a  gar- 
den, cutting  the  lawn,  and  the  other  chores  and  errands  which  a 
man  of  family  is  apt  to  find  waiting  for  him  at  night  or  urging 
him  out  of  bed  in  the  morning.  If  these  are  denied  to  a  man, 
the  next  best  things  are  active  outdoor  amusements,  like  golf, 
tennis,  horseback  riding,  or  "hiking"  about  with  a  camera :  any- 


THE  BODILY  AND  ECONOMIC  LIFE.  79 

thing  he  takes  enough  interest  in  that  requires  active  exercise 
in  the  open  air.  If  none  of  these  are  available,  gymnastic  exer- 
cises done  with  no  other  motive  than  the  exercise  itself  may 
answer  fairly  well,  but  these  are  better  if  done  in  the  gymnasium, 
and  the  swimming  tank,  with  the  added  interest  and  stimulation 
of  comradeship  and  competition,  than  if  done  in  solitude  at  home. 
Efficiency  and  usefulness  are  very  closely  related  to  bodily 
health  and  vigor;  therefore,  the  duty  to  serve  one's  family  and 
society  involves  the  primary  duty  to  preserve  health  and  strength 
by  every  available  means,  to  the  end  that  one  may  be  an  efficient 
instrument  for  service.  Also,  the  personal  satisfactions  derived 
from  well-balanced  and  normal  physical  powers  are  very  great 
and  are  proper  objects  of  desire  and  endeavor. 

THE   ECONOMIC  LIFE 

*"The  economic  life  has  its  origin  in  the  natural  needs 
which  man  shares  with  the  brute.  When  the  functions  engaged 
in  the  satisfaction  of  these  needs  are  systematized  by  reason, 
two  institutions  arise  which  form  the  basis  of  economic  life : 
labor  and  property.  The  accumulation  of  commodities,  which  is 
the  original  form  of  property,  enables  man  to  free  himself  from 
the  slavery  of  monetary  needs,  to  which  the  animal  is  subjected. 
This  freedom  is  the  precondition  of  all  real  human  life ;  without 
it  there  can  be  no  systematic,  purposive  activity,  no  mental- 
historical  life.  Through  it,  what  remains  a  natural  process  in 
the  animal  world  is  raised  to  the  moral  sphere."  *  *  *  The 
acquisition  and  consumption  of  commodities  impose  moral  duties 
upon  the  individual. 

"In  the  more  highly  developed  stages  of  civilization,  labor 
assumes  the  form  of  a  calling  or  profession.  Professional  effi- 
ciency and  fidelity  to  calling  are  the  virtues  peculiar  to  this  field." 

"Under  healthy  conditions,  the  duties  of  the  calling  form 
the  center  of  one's  entire  life.  The  boy  practices  his  future 
profession  in  play;  the  youth  leaves  the  parental  home  to  learn 
it,  and  the  man  devotes  his  whole  energy  to  it.  The  vocation 
determines  our  essential  relations  to  the  external  world ;  it  brings 
us  into  contact  with  our  colleagues  during  the  periods  of  work 

*Paulsen,  Chapter  4,  page  529. 


80  SYSTEM  OF  ETHICS. 

and  rest;  and  upon  it  depends  the  manner  ni  which  we  exercise 
our  faculties  in  play.  Hence  the  calling  is  the  guiding  principle 
in  life;  it  gives  it  steadiness  and  purpose." 

"The  teleological  necessity  of  the  calling  becomes  apparent 
when  we  consider  the  consequences  of  its  lack.  Both  rich  and 
poor  may  be  without  a  calling.  The  individuals  without  a  calling 
who  form  the  lower  fringe  of  society  constitute  the  proletariat. 
This  group  is  composed  of  those  who  have  no  steady  work,  but 
wander  from  place  to  place  and  beg  or  steal,  or  otherwise  gain 
their  livelihood.  Aversion  to  work,  dissipation,  drunkenness, 
recklessness,  vanity,  are  the  vices  which  draw  individuals  into 
this  group.  Moreover,  this  mode  of  life  is  transmitted  by  hered- 
ity; degenerate  families  raise  degenerate  offspring."     *     *     * 

"Another  group  of  persons  who  have  no  calling  is  formed 
at  the  upper  fringe  of  society.  I  mean  the  professional  idlers 
who  live  on  their  interest  and  absolve  themselves  of  the  duty 
of  having  a  calling.  Looked  at  from  the  outside,  their  manner 
of  life  differs  from  that  of  the  other  class;  seen  from  within, 
however,  it  shows  many  points  of  resemblance.  Besides,  these 
two  classes  come  into  personal  contact  with  each  other:  they 
meet  in  the  demi-monde  and  among  the  gambling  fraternity. 
Both  congregate  in  large  cities,  both  have  peculiarly  perverse 
notions  of  honor,  both,  above  all,  are  restless  in  disposition  and 
unsettled  in  their  movements.  *  *  *  Nothing  is  required  of 
the  rich  idler,  so  he  takes  up  now  one  thing,  now  another,  only 
to  abandon  it  again  at  the  earliest  opportunity.  The  ability  to 
will,  which  simply  means  the  ability  to  persevere,  even  in  the 
face  of  temporary  distractions,  is  gradually  lost  when  not  exer- 
cised, and  the  victim  perishes  from  an  incurable  softening  of 
the  will."     *     *     * 

"Man  was  not  designed  by  nature  merely  to  enjoy,  but  to 
w^ork  and  acquire.  However  plausible  it  may  at  first  sight 
appear,  the  attempt  to  live  a  life  of  enjoyment  merely,  has 
invariably  failed.  Toil  and  pleasure,  that  is  an  old  law  of 
nature ;  without  the  former,  we  cannot  obtain  the  latter." 
*     *     * 

"Not  only  do  we  owe  it  to  ourselves  to  pursue  a  seri- 
ous  calling,  but  likewise  to   society   at   large.     The  man   who 


THE  BODILY  AND  ECONOMIC  LIFE.  81 

refuses  to  work  in  some  way  or  other  lives  at  others'  expense. 
This  is  no  less  true  of  one  who  idly  spends  his  inheritance 
than  of  the  professional  beggar  or  thief.  From  the  legal 
point  of  view,  the  former  consumes  what  belongs  to  him  and 
does  no  wrong;  from  the  moral  standpoint,  however, — that 
is,  in  reality, — he  accepts  the  products  of  others'  labor  without 
making  any  return ;  he  lives  as  a  parasite  at  the  table  of  the 
people,  without  helping  to  defray  the  costs."     *     *     * 

"An  indirect  accumulation  and  hoarding  of  products  beyond 
the  amount  needed  for  self-consumption  is  made  possible  by 
converting  them  into  money.  But  inasmuch  as  money  pos- 
sesses a  conventional  value  only,  society  has,  by  adopting  the 
invention  tacitly  given  its  consent  to  the  consequences 
thereof." 

"But  to  this  (somewhat  imaginary)  contract,  we  might  con- 
tinue, society  has,  likewise  tacitly,  added  a  clause :  it  shall  be 
valid,  only  on  condition  that  the  person  who  thus  becomes 
possessed  of  wealth  shall  make  some  return  for  the  surplus 
which  he  acquires  with  the  tacit  consent  of  society.  A  con- 
tract assumes  that  some  return  be  made;  otherwise  it  is  a 
donation ;  and  there  is  no  reason  to  suppose  that  society 
intended  to  donate  anything  to  anyone,  nor  has  society  any 
right  to  do  so,  at  least  if  future  generations  are  to  bear  the 
burden.  The  individual  may  make  such  a  return  by  assuming 
public  responsibilities:  say,  by  leading  and  representing  his 
people  in  peace  and  war,  by  serving  as  a  judge  or  legislator, 
by  performing  the  duties  of  the  priestly  calling,  or  by  admin- 
istering the  spiritual  possessions  of  a  nation  in  science  and 
art.  And  it  may  still  be  regarded  as  such  a  return  to  system- 
ize  and  guide  economic  production, — nay,  even  to  influence 
consumption  in  a  manner  conducive  to  welfare,  by  example 
and  encouragement,  by  public  generosity  and  private  benefi- 
cence. During  the  time  when  the  nobility  and  clergy  still 
were  an  active  power  in  the  body  politic,  they  so  conceived 
and  performed  their  functions.  The  man  who  does  nothing, 
ignores  the  obligations  tacitly  assumed  by  accepting  prop- 
erty, and  therefore,  has  no  right  to  it,  from  the  moral  point 
of   view.     *     *     *     The    people    fully   appreciate    this    fact." 


82  SYSTEM  OF  ETHICS. 

"The  law  does  not  execute  the  judgment  of  morals,  it  does 
not  repudiate  ownership  in  property  when  no  return  is  made, 
or  in  case  of  misuse,  and  it  is  probably  well  that  it  does  not. 
For  it  would  not  only  be  impossible  to  formulate  the  neces- 
sary rules  and  to  enforce  them,  but  there  would  arise  a  feeling 
of  insecurity  in  reference  to  property  which  would  carry 
greater  evils  in  its  train  than  the  most  flagrant  abuse  of  prop- 
erty rights  in  particular  instances  could  effect.  In  a  certain 
sense  however,  history  realizes  the  judgment  of  morality. 
Whenever  the  nobility  and  clergy  renounced  their  obligations 
and  merely  retained  the  corresponding  privileges  as  an 
inalienable  right,  things  went  along  in  this  way  for  a  while, 
but  the  day  of  reckoning  came  at  last,  and  they  were  cast  off 
from  the  social  body  as  useless  members  or  as  harmful  para- 
sites. Thus  history  pronounced  sentence  upon  the  French 
nobility  in  the  French  Revolution ;  and  the  ecclesiastical  revo- 
lution of  the  sixteenth  century  condemned  the  clergy,  who 
had  proved  false  to  their  trust.  History  will  not  hold  the 
capitalist  more  sacred  than  the  nobility  and  the  clergy." 
*     *     * 

"Whoever  consumes  rents  without  making  some  return  or 
other,  is  hastening  the  coming  of  the  judgment.  The  eighth 
commandment  is  never  broken  with  impunity.  The  law,  how- 
ever, 'Thou  shalt  not  steal,'  is  merely  the  negative  formula 
of  the  positive  command.  'By  the  sweat  of  thy  face  shalt  thou 
eat  bread.'  " 

*"Let  us  cast  a  glance  at  the  other  side  of  economic 
life,  at  the  question  of  consumption.  The  virtue  peculiar  to 
this  field  is  the  virtue  of  frugality,  or  economy,  the  capacity 
for  managing  one's  affairs  according  to  one's  income  as  well 
as  according  to  the  needs  and  obligations  which  grow  out  of 
individual  conditions  and  social  rank.  This  virtue,  too,  we 
may  define,  following  the  Aristotelian  principle,  as  a  mean 
between  two  faults  or  vices,  greed  and  prodigality.  The 
miser  saves  where  he  ought  to  spend,  the  spendthrift  spends 
lavishly  where  he  ought  to  save.     The  good  manager  is  dis- 

*Page  536. 


THE  BODILY  AND  ECONOMIC  LIFE.  83 

tinguished  from  the  prodigal  by  the  virtue  of  frugality,  from 
the  miser  by  the  virtue  which  Kant  calls  "liberalitas  moralis" 
(in  opposition  to  "liberalitas  sumptuosa")  :  he  lives  decently 
himself  and  is  generous  to  others  who  need  his  help." 

"Of  the  two  vices,  avarice  is  the  most  disgraceful,  extrava- 
gance the  more  dangerous.  Greed  characterizes  a  base  nature. 
The  soul  in  which  it  has  taken  root  withers  and  dies ;  all  higher 
aspirations  disappear.  The  miser  at  last  begrudges  himself 
and  others  all  that  is  good.  Extravagance,  on  the  other  hand, 
may  exist  in  connection  with  grand  aspirations.  It  is  closely 
allied  to  a  much  admired  virtue,  generosity.  The  spendthrift 
always  regards  himself  as  a  liberal  man,  and  is  likewise 
praised  as  such  by  those  who  profit  by  his  extravagance. 
Avarice,  on  the  other  hand,  has  no  one  to  sing  its  praises ;  nay, 
even  the  virtue  of  which  it  is  a  degenerate  form,  frugality, 
finds  few  admirers,  especially  when  practiced  by  princes  and 
great  lords."     *     *     * 

*'Tt  is  a  well  known  fact  that  greed  is  confined  almost 
entirely  to  old  age.  *  *  *  ji^w  desires  diminish  as  the 
capacity  for  enjoyment  becomes  weaker  in  old  age,  while  the 
abstract  desire  for  possession  continues  strong  to  the  end. 
Hence,  we  might,  perhaps,  regard  this  process  as  a  strategy 
of  nature  to  transmit  the  products  of  the  parent  generation 
to  its  successors." 

"Avarice,  therefore,  debasing  though  it  be,  is  not  altogether 
injurious  in  its  effects.  The  consequences  of  extravagance, 
on  the  other  hand,  are  absolutely  destructive  to  individual  as 
well  as  to  social  life.  The  first  consequence  of  extravagance 
is  a  lack  of  means  for  the  necessaries  of  life,  and  the  resulting 
need  of  exercising  strict  economy  in  the  wrong  place.  What 
the  wife  wastes  on  dress  and  show,  must  be  made  up  in  the 
home  and  on  the  table.  What  is  spent  on  receptions  and 
sports,  on  horses  and  dogs,  is  deducted  from  the  household  allow- 
ance. Still  more  often  there  is  not  money  enough  to  meet 
legitimate  expenses :  the  servants  are  not  properly  fed,  nig- 
gardly wages  are  paid,  public  enterprises  make  vain  appeals 

*Page  537. 


84  SYSTEM  OF  ETHICS. 

for  aid.  *  *  *  And  just  as  extravagance  leads  to  false 
economy,  it  leads  to  improper  methods  of  acquisition. 

The  landowner  fleeces  his  tenants  and  day  laborers,  the 
prince  his  subjects,  the  physician  his  patients,  the  lawyer  his 
clients,  the  gentleman  of  leisure  takes  to  gambling,  the  merchant 
speculates  on  the  exchange,  the  tradesman  adulterates  his  goods, 
the  ofiticial  accepts  bribes  or  fawns  upon  his  superiors  for  promo- 
tion or  an  increase  of  salary,  the  courtier  begs  for  pensions  and 
presents,  the  author  and  scholar  cater  to  the  popular  tastes,  the 
artist  tickles  the  palate  of  the  money  bag; — money  must  be 
made,  money  at  any  price,  even  at  the  price  of  freedom  and 
honor,  body  and  soul."     *     *     * 

*"The  most  favorable  condition  for  the  development  of 
the  economic  virtues,  is,  as  the  old  Greek  sages  already  de- 
clared, the  possession  of  moderate  means;  wealth,  our  own 
language  significantly  calls  it.  Pleasure  in  acquisition  and 
possession,  efficient  work,  and  moderation  in  the  use  of  com- 
modities, are  most  common  in  the  middle  classes.  The  "too 
much"  and  the  "too  little"  are  equally  dangerous.  Riches  are 
dangerous  in  that  they  tend  to  encourage  idleness,  arrogance, 
ostentation,  and  extravagance.  Excess,  however,  begets  sor- 
row and  ruin.  Especially  dangerous  is  sudden  wealth  not 
acquired  through  labor.  The  money  won  in  lotteries  and  stock 
speculations  usually  soon  goes  the  way  it  came,  not,  however, 
without  first  ruining  the  life  of  the  lucky  (unlucky?)  winner. 
Inherited  possessions  are  not  so  dangerous.  A  family  that 
has  been  long  accustomed  to  certain  conditions  of  life  develops 
the  power  to  resist  the  temptations  of  riches;  the  man  who 
inherits  the  wealth  of  his  ancestors  in  a  certain  measure 
inherits  their  sense  of  duty  and  honor.  The  feeling  that  he  is 
destined  to  do  great  things  serves  to  counteract  the  empty 
feeling  of  power  which  easily  turns  the  head  of  the  'nouveau 
riche.'  " 

"Poverty  is  equally  unfavorable  to  the  development  of 
economic   virtues.      Inherited   poverty  deadens   the   sense  of 

*Page  540. 


THE  BODILY  x\ND  ECONOMIC  LIFE.  85 

ownership.  Children  reared  in  utterly  destitute  families,  hv- 
ing  from  hand  to  mouth,  fail  to  experience  the  pleasures  of 
acquisition  and  ownership.  The  desire  to  have  more  than  is 
required  to  satisfy  daily  needs  does  not  manifest  itself,  or  at 
least  remains  an  idle  wish,  and  never  grows  into  a  strong 
volition.  When  this  state  becomes  a  habit,  the  individual 
becomes  improvident  and  reckless,  giving  no  heed  to  the 
morrow.  Poverty  tends  to  blunt  the  sense  of  ownership  in 
another  sense;  it  weakens  the  person's  ability  to  discriminate 
between  'mine'  and  'thine.'  When  a  man  possesses  property 
himself,  he  appreciates  the  sacredness  of  property.  When  he 
looks  upon  the  institution  of  property  merely  as  a  barrier,  as 
a  protection  against  him  and  not  also  for  him,  he  naturally 
feels  less  hesitancy  in  overleaping  it  than  when  he  has  been 
accustomed  from  childhood  to  regard  it  as  a  means  of  self- 
defence."     *     *     * 

*"The  possession  of  moderate  means  secures  the  individual 
from  temptations  in  either  direction.  It  saves  him  from  the 
slavery  which  is  the  companion  of  poverty ;  it  gives  him  the 
free  choice  of  a  profession,  without  tempting  him  not  to  fol- 
low any  calling  whatever.  It  develops  in  him  a  desire  for 
possession,  as  opposed  to  the  proletarian  supineness  of  pov- 
erty. It  arouses  a  pleasure  in  ownership,  as  opposed  to  the 
arrogance  of  satiety,  which  follows  upon  superabundance. 
It  is  plain,  the  conditions  in  this  regard  are  not  favorable  in 
our  age.  The  marvelous  growth  of  industry  and  commerce 
during  the  nineteenth  century,  the  concomitant  development 
of  speculation  and  the  stock  exchange  system,  have  enabled 
particular  individuals  to  accumulate  enormous  wealth,  not 
infrequently  without  any  merit  of  their  own,  which  now  seeks 
in  vain  for  rational  employment.  The  consequence  is  sense- 
less extravagance,  a  great  greed  for  gain,  and  an  insane  mania 
for  gambling.  Universal  poverty  and  proletarian  misery  form 
the  obverse  of  the  picture." 

*Page  542. 


CHAPTER  VI. 

THE   SPIRITUAL  LIFE  AND   CULTURE 
SCIENCE   AND   ART,    HONOR,    SELF-KNOWLEDGE 

*"By  culture  we  mean  the  perfect  development  of  spir- 
itual life.  It  consists  in  the  capacity,  acquired  by  instruction 
and  practice,  to  take  an  active  part  in  the  spiritual  life,  first, 
of  a  people  and  ultimately  of  humanity." 

"We  note  as  the  two  essential  phases  in  the  spiritual  life  of 
a  people,  knozuledge  and  the  creative  fancy,  philosophy  and 
science,  art  and  poetry.  Culture,  therefore,  means  for  the 
individual  the  development  of  the  intellect  to  the  end  that  he 
may  know  the  truth,  and  of  the  senses  and  the  imagination, 
that  he  may  comprehend  and  enjoy  the  beautiful."  *  *  * 
''Knowledge  has  a  double  function.  The  intellect  is,  first,  the 
organ  of  the  will;  its  function  is  to  adjust  the  latter  to  its 
environment.  As  was  indicated  before,  the  feeling  of  pleasure 
and  pain  may  be  regarded  as  the  most  primitive  form  of 
knowledge.  The  senses,  *  *  *  enable  the  animal  to 
understand  its  more  remote  surroundings  and  to  adapt  itself 
to  what  is  useful  or  harmful.  Sensibility  develops  into  intelli- 
gence, which  may  be  defined,  in  a  general  way,  as  the  faculty 
to  know  from  what  is  given  that  which  is  not  given.  *  *  * 
Man  succeeds  in  discovering  the  ultimate  and  constant  rela- 
tions *  *  *  which  are  expressed  in  the  formulse  which 
we  call  laws  of  nature.  The  knowledge  of  them  gives  him 
theoretical  and  practical  control  of  the  nature  of  things :  he 
is  able  not  only  to  foresee  the  complex  processes,  which  the 
animal  too,  may,  in  a  certain  measure,  foresee,  but  also  to 
explain  them  —  that  is,  to  deduce  them  from  their  causes,  and, 
in  so  far  as  the  causes  are  in  his  power,  to  produce  them. 
Thus,  the  intellect  has  become  the  powerful  instrument  by 

*Page  543. 


SPIRITUAL  LIFE.  87 

which  man  has  made  the  earth  his  servant.  He  has  tamed 
the  animals  or  exterminated  them,  he  has  selected  and  formed 
the  plants  which  cover  the  earth,  he  has  compelled  the  forces 
of  nature  to  do  his  bidding.    Knowledge  is  power." 

"But  knowledge  also  has  another,  an  immediate  value.  In 
the  animal  it  is  absolutely  subservient  to  practical  needs,  in 
man  it  becomes  free;  he  takes  a  disinterested  interest  in  con- 
templation, so  to  speak.  This  holds  even  of  sense  perception. 
The  eye  finds  pleasure  in  forms  and  colors,  the  ear,  in  notes 
and  their  rhythmical  musical  successions;  hence  arise  music 
and  painting.  From  the  same  pleasure  in  the  contemplation 
of  things  springs  philosophy.  Philosophy  is  purely  contem- 
plative knowledge.  *  *  *  The  Socratic  school,  in  which 
it  was  first  used  as  a  technical  term,  distinguishes  philosophy, 
as  purely  theoretical  knowledge,  from  technical  knowledge. 
*  *  *  In  this  most  general  sense,  philosophy  is  a  universal 
human  function ;  mythology  is  its  most  primitive  form ;  it  uni- 
versally arises  as  an  attempt  to  comprehend  the  whole  of 
things  into  one  conception ;  and  to  interpret  the  meaning  of 
the  universe  and  especially  of  life." 

"This  estimate  of  knowledge  will  furnish  us  with  a  standard 
by  which  to  measure  the  value  of  particular  forms  of  cogni- 
tion. We  shall  say  that  a  particular  truth  has  value  in  so  far 
as  it  tends  to  increase  our  practical  power,  and  our  theoretical 
insight  into  the  nature  of  things  in  general.  Knowledge  which 
has  no  value  in  either  sense,  which  accomplishes  nothing  for 
our  technics  or  for  our  philosophy,  has  no  value  whatever. 
The  proposition  *  *  *  Everything  that  is,  is  worthy  of 
being  known,  is  not  infrequently  proclaimed  in  our  age  as 
the  highest  principle  of  scientific  research.  I  cannot  help 
regarding  this  as  a  meaningless  assertion — one,  however,  that 
is  accepted  by  many  as  a  convenient  means  of  silencing  the 
question  concerning  the  value  of  particular  investigations. 
Apparently,  however,  the  true  scientist  does  not  adhere  to 
this  principle.  In  spite  of  the  assertion  that  everything  that 
exists  deserves  to  be  known,  no  historian  has  ever  undertaken 
to  ascertain  what  such  and  such  a  celebrity  or  "obscurity" 
has  had  for  breakfast  or  dinner  every  day  of  his  life.  *  *  * 
Nor  has  any  scientist  ever  attempted  to  count  the  grains  of 


88  SYSTEM  OF  ETHICS. 

sand  on  the  seashore,  and  to  describe  the  forms  of  the  separate 
grains.  Why  not?  Surely  because  healthy  common-sense,  if 
not  scientific  insight,  instinctively  recognizes  the  uselessness 
of  such  a  task.  It  must  be  added,  however,  that  we  cannot 
always  tell  in  advance  whether  an  investigation  will  yield 
results  which  may  have  some  bearing  on  knowledge  in  either 
form  or  not.  In  no  case,  perhaps,  has  healthy  common-sense 
betrayed  such  shortsightedness  as  in  its  repudiation  of  scien- 
tific research  as  useless  trifling  or  curiosity." 

There  appear  to  be  two  rather  distinct  types  of  men  engaged 
in  scientific  or  philosophical  research ;  those  who  distinctly 
and  avowedly  have  some  utilitarian  end  in  view,  and  those 
who  disclaim  any  such  motive,  and  are  sometimes  disposed 
to  make  the  absence  of  any  utilitarian  motive  the  test  of  true 
scholarship.  Of  the  first  type  were  the  old  alchemists,  seeking 
to  transmute  base  metals  into  gold,  Edison,  working  out  the 
problems  of  the  telephone,  the  phonograph  or  the  storage 
battery;  and  our  own  Dr.  Black  determining  the  physical 
properties  of  amalgams,  of  gold,  and  the  enamel  and  dentine 
of  natural  teeth.  Men  of  the  second  type  are  mostly  connected 
with  educational  institutions,  and  much  good  work  is  being 
done  by  some  of  them.  There  would  seem  to  be  little  ground 
for  the  assumption  of  superiority  of  one  class  of  research 
workers  over  the  other,  for  men  of  the  first  sort  have  often 
spent  years  of  patient  work  and  missed  at  last  the  utilitarian 
end  they  sought,  and  on  the  other  hand  the  most  important 
utilitarian  ends  have  sometimes  been  accomplished  by  men 
who  were  not  seeking  for  them,  and  in  some  instances  per- 
haps did  not  recognize  them  when  they  saw  them. 

*"The  same  principle  applies  when  it  comes  to  judging 
the  value  of  knowledge  for  the  individual.  Cognitions  have 
no  absolute  value  for  the  individual,  they  have  value  in  so  far 
as  they  do  something  for  him,  either  by  solving  his  practical 
life-problems,  or  by  assisting  him  in  his  philosophical  reflec- 
tions, or,  in  other  words,  in  so  far  as  they  make  him  wiser  and 
more  prudent.  Knowledge  which  does  neither  one  nor  the 
other,  which  does  not  make  him  either  more  efficient  in  his 
calling  or  more  skillful  in  contemplation,  has  no  value  for 

♦Page  547. 


SPIRITUAL  LIFE.  89 

him  whatever.  If  we  call  the  knowledge  upon  which  profes- 
sional efficiency  is  based  professional  or  technical  education, 
and  that  upon  which  rests  the  ability  to  contemplate,  to  par- 
ticipate in  philosophy,  literature,  and  art,  general  culture,  we 
may  say :  Only  such  knowledge  is  valuable  to  the  individual 
as  either  serves  to  give  him  professional  culture,  or  intensifies 
his  general  culture,  or  does  both." 

"And  this  would  give  us  a  principle  for  the  guidance  of 
instruction :  Everybody  ought  to  acquire  such  knowledge  as 
will  assist  him,  on  the  one  hand,  in  following  his  special 
calling  to  the  best  possible  advantage,  and,  on  the  other,  in 
understanding  the  world  from  his  position  in  life."     *     *     * 

*"That  school  will  be  best  for  the  individual  which,  on  the 
one  hand,  is  suited  to  his  individual  talents  and  tastes,  and,  on 
the  other,  to  his  future  calling  and  position  in  life.  *  *  * 
The  principle  holds  absolutely :  Knowledge  which  the  indi- 
vidual cannot  utilize,  either  on  account  of  natural  incapacity, 
or  in  consequence  of  his  external  position,  is  of  absolutely  no 
value  to  him." 

"Yes,  we  may  go  further  and  say  it  is  an  evil.  This  becomes 
self-evident  when  the  individual  is  lacking  in  talent.  To  know 
too  much  for  his  capacity  makes  a  man  not,  wiser,  but  more 
stupid.  We  must  discriminate  between  stupidity  and  igno- 
rance. Ignorance  is  a  lack  of  knowledge ;  stupidity  is  a  lack 
of  judgment,  and  may  go  with  great  learning,  nay,  it  may, 
under  certain  circumstances,  be  due  to  this.  A  good  anecdote 
is  told  of  the  Duke  of  Wellington.  A  young  man  once  applied 
to  him  for  an  office.  After  conversing  with  him  for  a  while, 
the  Duke  refused  his  application,  adding:  "Sir,  you  have 
received  too  much  education  for  your  brains."     *     *     * 

"If  a  man's  inner  life  is  consistently  and  harmoniously  de- 
veloped, if  he  has  digested  and,  as  it  were,  converted  into 
organic  substance  and  living  force  whatever  opinions  and 
experiences  he  has  acquired  at  school  and  in  the  world,  he  is 
a  well-educated  man.  Not  the  mass  of  material,  but  the  inner 
form  is  what  makes  education.    Matter  without  form  produces 

*Page  549. 


90  SYSTEM  OF  ETHICS. 

semi-education,  over-education,  pseudo-education,  or  what- 
ever we  may  call  this  degeneration  of  the  soul." 

"^"Art,  like  philosophy,  is  also  based,  partially  at  least, 
on  pure  contemplation.  If  play  is,  in  distinction  from  work, 
the  free  exercise  of  powers,  and  not  a  means  to  an  external 
end,  while  in  work  an  external  effect,  or  product,  is  desired, 
art,  as  well  as  philosophy,  belongs  in  the  category  of  play. 
All  occupation  with  the  fine  arts  is  playful  or  purposeless  exer- 
cise of  sensuous-spiritual  powers."     *     *     * 

"Art  is  also  partially  rooted  in  feeling  and  zvilling.  Every 
strong  emotion  is  accompanied  by  the  desire  to  express  and 
communicate  itself.  The  joys  and  pangs  of  love,  martial 
courage  and  sadness,  yearning  and  reverence,  seek  and  find 
relief  in  poetry  and  song.  By  the  rhythmical-melodious  ar- 
rangement of  words  and  notes,  the  feelings  themselves  are 
aroused.  And  so  the  will  and  the  mood  of  a  people  and  an 
age  are  expressed  and  objectified  in  the  great  creations  of  epic 
and  dramatic  poetry  as  well  as  in  the  creations  of  the  plastic 
arts  and  architecture.  Gothic  art  manifests  the  mood  of 
towering  supernaturalism,  which  contemns  and  repels  the 
earthly  sensuous  world, — corporeality  with  its  pleasure  and 
heaviness.  In  the  Renaissance  the  opposite  mood  asserts 
itself;  its  architecture  and  fine  arts,  its  costumes,  and  house- 
furnishings,  its  poetry  and  music,  all  of  them  express  the  de- 
termination of  the  age  to  abandon  itself,  with  the  enthusi- 
asm and  exhuberance  of  youth,  to  the  contemplation  and  en- 
joyment of  everything  charming  and  agreeable,  till  it  seems 
as  if  the  age  felt  the  need  of  making  up  for  lost  time." 

"It  is  the  highest  function  of  art  to  shape  and  express 
the  ideals  which  the  spiritual  life  of  a  nation  creates.  The 
ideal  world  reaches  its  highest  expression  in  a  supra-mun- 
dane superhuman  world,  in  which  perfection  has  absolute 
reality  for  faith.  Thus  art  becomes  the  organ  of  religion. 
Its  highest  function  is  to  realize  the  innermost  cravings  of 
a  people,  to  contemplate  its  ideas  of  perfection  in  concrete 
forms.     So   the   plastic   arts   produced   concrete   representa- 

*Page  556. 


SPIRITUx'VL  LIFE.  91 

tions  of  the  Greek  gods, — glorious  figures  in  which  the 
Greek's  ideals  of  human  culture  were  made  visible  to  him. 
Similarly  Greek  poetry  gave  to  the  people  in  its  epics  and 
dramas  living  pictures  of  divine  and  human  excellences,  such 
as  courage,  loyalty,  devotion,  magnanimity,  prudence,  wis- 
dom, piety.  Christian  art,  too,  has  performed  the  same  neces- 
sary function  of  converting  the  realm  of  faith  into  a  world 
of  concrete  intuitions.  The  entire  mediaeval  art,  architec- 
ture, sculpture,  painting,  music,  and  poetry,  had  for  its  sole 
object  the  presentation  of  the  world  of  Christian  faith,  in 
the  form  which  this  had  assumed  in  the  Germanic  mind,  to 
the  senses  and  the  entire  man." 

"We  may  therefore  describe  the  ejfect  of  art  upon  the 
soul  as  follows:  (1)  It  exercises  our  sensuous  spiritual 
powers  and  so  fills  our  leisure  moments  with  the  purest  and 
most  beautiful  recreation  and  pleasure.  (2)  It  satisfies  and 
quiets  the  cravings  of  the  emotions  to  express  themselves,  by 
providing  them  with  the  necessary  stimulus  and  affording 
relief.  (3)  It  raises  the  soul  above  the  world  of  work  and 
need,  struggle  and  misery,  to  a  world  of  freedom  and  ideals, 
and  purifies  it  from  the  dust  of  base  feelings  and  passions 
with  which  the  affairs  of  daily  life  cover  it.  The  inner  uni- 
formity and  harmony  which  constitute  the  essence  of  all 
art  also  bring  uniformity  and  harmony  into  the  soul. 
Finally  (4)  it  binds  together  and  unites  the  members  of  the 
nation,  nay,  all  the  members  of  a  sphere  of  civilization ;  all 
those  who  have  the  same  faith  and  the  same  ideals.  Opin- 
ions and  interests  dififer  and  produce  discord ;  art  presents 
in  sensuous  symbols  the  ideals  which  are  cherished  by  all, 
and  so  arouses  the  feeling,  that  all  are,  in  the  last  analysis, 
of  the  same  mind,  that  all  recognize  and  adore  the  same  ulti- 
mate and  highest  things."     *     *     * 

"If  this  is  a  correct  description  of  the  nature  and  effect 
of  art,  it  follows  that  it  is  a  universally  human  function.  Art 
is  not  something  peculiar  to  a  few  nations  and  to  a  few  indi- 
viduals among  them,  but  all  nations  have  an  art  to  express  their 
emotions,  as  they  have  a  language  to  express  their  ideas.  And 
just  as  all  the  members  of  a  people  participate  in  its  language. 


92  SYSTEM  OF  ETHICS. 

though  not  equally,  so  all  of  them,  in  a  measure,  participate  in 
its  art." 

HONOR   AND   LOVE  OF    HONOR. 

*"The  love  of  honor  may  be  regarded  as  a  peculiar  modifica- 
tion of  the  impulse  of  self-preservation;  it  aims  at  the  preser- 
vation of  the  self  in  consciousness,  in  our  own  consciousness  as 
well  as  in  that  of  others.  We  may  call  it  the  impulse  of  ideal 
self-preservation." 

"By  honor  in  the  objective  sense  we  mean  the  opinion 
which  our  surroundings  have  of  us.  By  his  character  and  his 
acts,  every  man  arouses  sentiments  in  his  fellows  which 
represent  judgments  of  value;  respect  and  disrespect,  ad- 
miration and  contempt,  reverence  and  aversion.  These  feel- 
ings express  themselves  in  judgments  and  are  influenced,  in- 
tensified and  harmonized  by  other  feelings,  and  thus  arises 
something  like  a  general  estimate  of  the  value  of  the  par- 
ticular  individual   in   society:   this   is   his    objective   honor." 

*       *       H< 

"There  are  as  many  different  kinds  of  honor  as  there  are 
groups  or  sets  to  which  a  man  belongs.  As  a  member  of  a 
political  community,  he  has  a  political  honor ;  it  measures  his 
value  as  a  citizen.  *  *  *  Besides  the  political  honor,  there 
is  special  social  honor.  Everybody  is  a  member  of  society;  his 
value  as  such  is  measured  by  his  social  honor."     *     *     * 

"Within  these  comprehensive  groups  there  are  narrower 
circles  each  having  its  particular  form  of  honor :  we  speak  of 
the  honor  of  a  merchant,  the  honor  of  an  artist,  the  honor  of 
an  officer,  the  honor  of  a  student,  etc.  Its  possession  signi- 
fies that  the  individual  satisfies  the  special  demands  that  are 
made  upon  him  by  the  particular  set  to  which  he  belongs." 

"Collective  bodies,  too,  like  individuals,  have  their  honor: 
a  family  has  its  family  honor  among  other  families,  *  *  * 
a  profession  among  other  professions,  a  nation  among  other 
nations.  The  individuals  have  a  share  in  this  collective 
honor;  let  an  Englishman's  honor  be  what  it  may  among 
Englishmen;  among  foreigners  he  has  the  honor  of  an  Eng- 
lishman  in  general.     This  collective  honor  is   a  highly  im- 

*Page  569. 


SPIRITUAL  LIFE.  93 

portant  factor  in  all  collective  life ;  it  firmly  cements  the  mem- 
bers of  a  community  together.  The  family  honor  holds  the 
members  of  a  family  together,  even  after  they  have  lost  their 
love  and  respect  for  each  other ;  all  of  them  would  have  to 
suffer  the  disgrace  of  a  single  member." 

"The  significance  of  honor  for  human  conduct  is  obvious. 
*  *  *  As  a  rule  honor  is  increased  by  everything  that  increases 
the  pozver  and  influence  of  an  individual,  or,  in  other  words, 
increases  his  capacity  to  help  or  harm  others.  \\'e  may  mention 
such  qualities  as  strength,  skill,  courage,  military  skill ;  these  qual- 
ities are  pre-eminently  honorable  in  primitive  society.  *  *  * 
Then  come  wealth,  which  too  means  social  power;  birth  and  rank, 
which  give  power,  namely  through  family  connections ;  and  finally, 
prudence,  knowledge  of  the  law,  and  eloquence,  qualities  which, 
with  the  progress  of  political  development,  enable  their  pos- 
sessors to  attain  to  higher  positions,  either  as  leaders  of  the 
people  or  as  officers  of  the  state.  The  types  depicted  in  the 
Greek  epic  are  the  simplest  examples  of  these  dififefrit  forms 
of  fame  and  distinction.  Achilles  stands  for  strength  and  cour- 
age ;  Agamemnon,  for  rank  and  wealth ;  Ulysses  and  Nestor 
for  prudence  and  eloquence.  Finally,  the  moral  excellences 
also  belong,  in  a  certain  sense,  to  the  qualities  which  bring 
honor  and  which  the  love  of  honor  impels  us  to  acquire. 
Intemperance,  dissipation,  and  extravagance,  bring  disgrace, 
at  least  after  they  have  ruined  the  person  addicted  to  them, 
for  then  the  friends  who  once  applauded  him  forsake  him. 
The  opposite  modes  of  behavior,  on  the  other  hand,  preserve 
wealth  and  strength,  and  so,  ultimately  at  least,  lead  to 
honor.  Falsehood,  on  account  of  its  kinship  with  cowardice, 
if  for  no  other  reason,  brings  disgrace;  likewise,  deceit  and 
dishonesty.  Veracity,  trustworthiness,  and  uprightness,  on 
the  contrary,  give  one  a  good  name.  Thus  honor  becomes 
the  guardian  of  morality ;  the  love  of  honor  tends  to  deter- 
mine the  will  to  develop,  first  of  all,  the  self-regarding  vir 
tues,  and  then  also  to  acquire  the  social  virtues,  or  at  least  to 
avoid  injustice,  falsehood,  and  crime." 

"No  detailed  account  is  needed  to  show  the  importance 
of  this  impulse  for  the  moral  education  of  the  race.    The  de- 


94  SYSTEM  OF  ETHICS. 

velopment  of  the  human  virtues  in  the  species :  courage,  mag- 
nanimity, justice,  veracity, — the  development  of  higher 
capacities,  economic  as  well  as  mental,  is  hardly  conceivable 
without  this  constantly  acting  impulse."     *     *     * 

*"The  proper  attitude  of  the  individual  towards  honor, 
the  virtue  into  which  the  impulse  of  honor  is  fashioned, 
we  call  the  love  of  honor.  We  may  define  it  as  that  habit  of 
will  and  mode  of  conduct  which  seeks  to  gain  the  recognition 
of  the  virtuous  and  good  by  means  of  honest  and  virtuous  ac- 
tions. Perhaps  we  may  characterize  it  suitably,  from  two  points 
of  view,  as  proper  pride  and  proper  humility." 

"Pride  (which  is  not  to  be  confused  with  haughtiness) 
is  the  antithisis  of  two  degenerate  forms  of  the  impulse  of 
honor:  vanity  and  ambition."     *     *     * 

The  distinction  between  pride,  considered  as  a  virtue, 
(for  the  word  'pride'  is  often  misused  when  vanity,  self-con- 
ceit, or  ambition  would  be  appropriate)  and  vanity  and  ambi- 
tion, is  that  the  two  latter  seek  for  admiration,  influence, 
power,  etc.,  as  a  first  consideration,  and  care  little  or  nothing 
for  the  quality  of  character  and  conduct  except  as  means  by 
which  to  attain  those  ends.  Pride,  on  the  contrary,  seeks 
first  the  character,  and  conduct,  and  service,  that  will  merit 
admiration,  honor  and  power,  hoping  that  such  rewards  may 
come,  but  holding  fast  to  character  and  service  whether  they 
do  or  not.  The  virtuously  proud  man  holds  himself  so  far 
independent  of  either  praise  or  blame  that  he  will  not  allow 
himself  to  be  turned  aside  from  either  virtue  or  duty  by 
either." 

"The  other  antithesis  of  the  love  of  honor  is  proper  humility. 
Pride  manifests  itself  in  the  proper  acceptance  of  honor,  humility 
in  the  proper  bestowal  of  honor." 

"Humility  is  the  opposite  of  haughtiness.  The  haughty 
man  despises  others,  he  treats  them  condescendingly.  By 
refusing  to  show  them  proper  respect,  he  endeavors  to  keep 
it  for  himself,  as  it  were,  and  so  to  have  an  advantage  over 
them.     He  does  not  seek  converse  with  men,  indeed  he  ac- 

*Page  573. 


SPIRITUAL  LIFE.  95 

tually  shuns  it,  because  he  finds  that  his  expectations  with 
respect  to  honor  are  not  realized,  and  because  he  is  not  will- 
ing to  satisfy  the  claims  of  others.  It  is  evidently  for  this 
reason  that  haughtiness  and  pride  are  so  easily  confused. 
Haughtiness  is,  moreover,  very  commonly  connected  with 
servility.  The  man  who  treats  those  whom  he  regards  as  his 
inferiors  with  brutal  haughtiness,  crouches  before  the 
mighty.  He  uses  all  the  arts  of  subservient  flattery  towards 
those  who  are  unquestionably  richer,  more  aristocratic,  pow- 
erful, and  influential  than  he,  in  order  thus  to  rise  on  the 
ladder  of  rank ;  he  revenges  himself  on  those  below  him,  and 
it  affords  him  special  satisfaction  to  kick  his  patron  as  soon 
as  he  has  outstripped  him.  In  this  way,  he  gets  back  his 
capital  with  interest." 

"Humility,  on  the  other  hand,  gives  everyone  the  honor 
which  is  his  due.  It  rejoices  at  the  merit  of  others,  and  is 
ever  ready  to  recognize  ability,  to  admire  excellence,  and 
to  reverence  goodness.  Genuine  humility — this  is  its  true 
sign — and  genuine  free-mind edness  go  together.  The  hum- 
ble, free-minded  man  bows  before  what  is  truly  honorable, 
even  when  it  appears  in  menial  form,  and  refuses  to  mere 
external  power  what  belongs  to  the  venerable  alone.  It  is 
with  pride  that  he  sides  with  those  who  are  outraged  for  the 
sake  of  truth  and  justice,  and  he  considers  it  an  honor  to 
suffer  disgrace  and  persecution  with  them.  The  word  of  the 
judge  on  the  judgment  day  applies  to  him :  T  was  in  prison 
and  ye  came  unto  me.'  " 

"There  are  two  well-known  types :  the  servile-minded, 
full  of  haughtiness  and  baseness  and  the  free-minded,  full 
of  noble  pride  and  reverence  and  deep  humility.  We  Ger- 
mans have  an  example  of  a  man  of  the  latter  type  in  Freiherr 
von  Stein.  'Humble  before  God,  high-minded,  magnanimous 
towards  men,  a  foe  of  falsehood  and  injustice,'  so  his  epitaph 
characterizes  him."     *     *     * 

*"With  true  pride  and  true  humility,  true  self-esteem 
finally  is  joined.  The  proper  estimate  of  oneself  may  be 
defined  as  a  mean   between   pusillanimity   and   supercilious- 

*r:io-e  578. 


96  SYSTEM  OF  ETHICS. 

ness.  Pusillanimity  is  habitual  faint-heartedness  in  regard 
to  the  problems  which  life  sets  before  us;  it  weakens  our 
capacity  to  act  and  to  suffer.  Superciliousness  springs  from 
underestimating  our  tasks  and  overestimating  our  powers; 
it  regards  exertion  as  superfluous,  and  so  is  no  less  productive 
of  failure  than  is  faint-heartedness.  *  *  *  True  self- 
esteem,  which  marks  the  efficient  man,  gives  him  confidence 
in  his  own  will  and  powers,  and  upon  the  latter  depend 
security  in  decision  and  firmness  in  execution.  *  *  *  The 
proper  estimate  of  one's  own  worth,  of  one's  own  powers 
and  achievements,  knowledge  of  self,  constitutes  a  particu- 
larly difficult  problem  of  self-culture.  *  *  *  How  can  we 
learn  to  know  ourselves?  Never  by  contemplation,  but 
always  by  action.  Try  to  do  your  duty,  and  you  will  know 
at  once  what  is  in  you."*     *     *     * 

"Modesty  may  be  defined  as  the  outward  form  of  the  love 
of  honor.  The  modest  man  shows  by  his  entire  behavior  that  he 
does  not  despise  the  opinion  of  others,  but  that  he  desires  to  make 
an  effort  to  gain  their  esteem.  The  opposite  demeanor  is  that  of 
the  overhearing  man ;  his  acts  proclaim  that  he  does  not  care  what 
others  may  think  of  him.  When  such  conduct  is  displayed  toward 
especially  venerable  persons,  we  call  it  insolence  and  impudence, 
the  sign  of  a  low  and  servile  disposition."     *     *     * 

Paulsen's  chapter  seventh,  on  suicide  is  not  necessary  to 
the  purposes  of  these  writings. 


*Goethe's  words  in  his  Spriiche  in  Prosa. 


CHAPTER  VII. 

COMPASSION   AND  BENEVOLENCE. 
JUSTICE — MAGNANIMITY. 

*"The  sympathetic  feelings  and  impulses  form  the  natural 
basis  of  the  social  virtues.  Such  will-impulses  are  called  sympa- 
thetic in  distinction  from  idiopathic  impulses,  which  originate 
directly  in  the  individual — as  are  aroused  in  us  by  transference 
from  others,  by  a  kind  of  contagion.  All  feelings  have  the  tend- 
ency, though  in  dififerent  degrees,  to  spread  by  sympathy,  as  for 
example,  pleasure  and  pain,  fear  and  hope,  love  and  hate,  con- 
tempt and  admiration,  cheerful  exuberance  and  earnest  solemnity. 
The  passions  aroused  by  a  speech  in  a  large  popular  gathering 
are  much  more  intense  than  those  which  arise  when  the  same  per- 
sons read  or  hear  the  same  speech  separately ;  it  seems  as  though 
the  feelings  were  reflected  from  every  feeling-center  in  the  meet- 
ing to  every  other  one,  and  the  rays  concentrated  in  each  indi- 
vidual as  in  a  burning  glass." 

"Not  only  is  the  human  heart  sensitive  to  sympathetic 
excitement,  it  likewise  yearns  deeply  to  have  its  feelings  com- 
municated to  and  reflected  from  other  hearts.  When  we  are 
happy  or  in  pain,  we  crave  for  human  beings  to  reflect  our 
joy  or  sorrow;  when  we  love  or  hate,  admire  or  condemn,  we 
strive  to  diffuse  our  feelings,  and  are  pained  when  our  sur- 
roundings remain  indifferent  to  us.  Every  strong  emotion 
impels  us  to  utterance;  "out  of  the  abundance  of  the  heart 
the  mouth  speaketh." 

"Blood-relationship  is  the  naturel  starting  point  of  the 
sympathetic  feelings.  They  manifest  themselves  most  in- 
tensely and  directly  in  the  relation  between  mother  and  child. 

*  *     *     From  this  point  sympathy  extends  to  the  members 

of  the  family,  tribe,  people,  humanity,  to  all  living  creatures." 

*  *     * 

*Page  592. 


98  SYSTEM  OF  ETHICS. 

"Of  all  feelings  pain  seems  most  capable  of  arousing  sym- 
pathy. Language  shows  this :  we  have  a  term  for  sympa- 
thetic pain  only,  in  compassion.  No  terms  have  been  coined 
to  designate  sympathetic  pleasure  or  fear. — It  is  doubtless 
true  that  joy  is  not  so  easily  transferred  by  sympathy."     *     *     * 

"Happiness  may  produce  in  others  that  peculiar  form  of 
pain  which  is  called  envy;  unhappiness  or  misfortune,  on 
the  contrary  may  produce  in  others  a  malicious  pleasure. 
These  are  well  known  phenomena  which  the  pessimistic 
philosophers  love  to  dwell  upon.  *  *  *  i^  the  troubles 
of  our  good  friends,  says  La  Rochefoucauld,  there  is  always 
something  that  does  not  displease  us,  and  with  still  greater 
justice  may  we  assert  that  there  is  always  something  in  the 
good  fortune  of  our  friends  that  does  not  entirely  please  us. 
He  goes  on  to  say  that  one  should  beware  of  mentioning  his 
good  fortune,  especially  to  his  less  fortunate  competitors. 
On  the  other  hand,  if  he  has  met  with  a  misfortune,  *  *  * 
if  he  has  been  hooted  as  a  speaker,  or  speculated  and  lost  on 
the  exchange,  he  need  not  let  the  fear  of  paining  his  good 
friends  hinder  him  from  telling  it.  He  will  have  no  difficulty 
in  finding  persons  to  pity  him,  but — well, — everybody  knows 
how  little  we  care  for  the  pity  of  our  friends  on  such  occa- 
sions." 

It  is  however,  a  mean  and  ungenerous  nature  that  finds 
pleasure  in  the  misfortunes  and  griefs  of  others  and  is  pained 
by  their  success  or  good  fortune,  and  I  prefer  to  reverse  the 
above  rule  and  to  show  our  confidence  in  the  love  and  good 
will  of  our  friends  by  telling  them  freely  of  our  joys,  and  suc- 
cesses, and  prosperity,  believing  it  will  give  them  pleasure 
without  exciting  their  envy.  And  on  the  other  hand  to  avoid 
paining  them  by  a  recital  of  our  griefs,  or  misfortunes,  or 
difficulties  unless  they  may  be  able  to  give  us  substantial 
help,  or  by  their  sympathy  and  encouragement  may  strength- 
en our  courage  and  patience  or  inspire  us  with  hope  for  the 
future. 

*"The  sympathetic  feelings,  and  especially  compassion,  evi- 
dently have  the  same  significance  for  conduct  that  all  feelings 

*Page  595. 


COMPASSION  AND  BENEVOLENCE.  99 

have:  their  object  is  to  guide  the  will  in  the  business  of  life. 
Just  as  idiopathic  pain  impels  the  individual  to  remove  the  evil 
or  the  disturbance  which  threatens  his  own  life,  so  compassion 
tends  to  determine  the  will  to  remove  the  causes  of  pain  from  the 
lives  of  others."     *     *     * 

"In  human  life,  however,  feeling  impulses  are  never  ade- 
quate guides  of  action,  but  require  the  regulative  control  of 
reason,  *  *  *  and  to  be  guided  by  wisdom.  The  virtue 
which  thus  arises,  the  general  fundamental  form  of  the  so- 
cial virtues,  may  be  called  'benevolence'  and  defined  as  that 
habit  of  the  will  and  mode  of  conduct  Avhich  tends  to  pro- 
mote the  w^elfare  of  the  surroundings  by  hindering  disturb- 
ances and  producing  favorable  conditions  of  life." 

"In  benevolence,  compassion  is  overshadowed  by  zvell- 
doing  beneficence.  The  benevolent  and  beneficent  man  pre- 
vents or  alleviates  the  sufferings  of  others  without  always 
having  to  feel  compassion  himself.  Nay,  a  certain  power  of 
resistance  is  as  much  a  part  of  benevolence  as  it  is  a  part  of 
courage  to  be  able  to  resist  idiopathic  pain,  or  a  part  of  tem- 
perance to  be  able  to  resist  the  temptations  of  sense.  We  do 
not  expect  a  physician  to  suffer  with  the  patient  all  the 
pains  which  he  witnesses  or  perhaps  causes  himself.  On  the 
contrary,  a  certain  obduracy  on  his  part  is  the  condition  of 
beneficent  action ;  his  compasssion  would  obscure  the  clear- 
ness of  his  judgment  and  interfere  with  the  steadiness  of  his 
movements.  It  is  well  known  that  physicians  do  not  like  to 
treat  their  nearest  relatives  because  their  pity  interferes  with 
their  skill.  But  not  only  is  freedom  from  pity  needed  to  give 
the  physician  greater  security  in  the  practice  of  his  art ;  it 
also  has  a  directly  beneficial  influence.  The  physician  enters 
the  sick  room  and  makes  his  examination  and  gives  his  or- 
ders with  business-like  serenity ;  he  does  not  pity  nor  lament. 
His  calmness  has  the  most  wholesome  effect ;  some  of  it  is 
communicated  to  the  relatives  and  the  patient.  *  *  * 
On  the  other  hand,  consider  the  influence  of  visits  from  rela- 
tives and  friends !  Frightened  by  the  appearance  of  the 
patient    and    overwhelmed    with    phy,    they    break    out    into 


100  SYSTEM  OF  ETHICS. 

tears  and  complaints,  and  so  increase  his  sufferings  by  their 
compassion  and  excitement." 

"The  same  thing  happens  in  other  cases.  A  tender 
mother  doubly  suffers  the  pains  which  her  child  feels.  If 
the  child  fall  and  hurt  himself,  she  is  overcome  with  pity. 
The  result  is  that  the  child  now  really  begins  to  feel  the 
pain;  he  does  not  cry  out  until  he  has  been  pitied,  when  he 
regards  himself  as  an  object  of  pity.  And  the  permanent 
effect  of  such  treatment  is  a  sort  of  whining  nature,  which 
is  not  a  pleasant  endowment  for  life.  Another  mother,  who 
loves  her  child  just  as  much,  bandages  the  wound  if  neces- 
sary, diverts  the  child's  attention  from  the  accident;  and  lo! 
the  pain  actually  disappears  when  it  is  resisted.  As  a  permanent 
consequence,  the  child,  in  a  measure,  becomes  hardened  to  such 
things,  and  so  receives  the  best  possible  equipment  for  life 
that  education  can  give.  To  love  one's  children  is  natural, 
and  neither  a  virtue  nor  an  art,  but  to  educate  children  is  a 
great  and  difficult  art,  which  demands,  first  of  all,  the  ability 
to  control  one's  natural  tender  impulses.  AVe  must  not  let 
our  children  know  how  much  we  love  them  says  an  old 
wise  maxim,  which,  however,  does  not  suit  the  sentimental- 
ism  and  vanity  of  modern  mothers." 

It  is  certainly  possible  to  exercise  the  self-control  and 
wisdom  indicated  in  the  preceding  quotation  without  in 
the  least  concealing  from  our  children  the  ardor  and  sin- 
cerity of  our  love  for  them,  and  this  we  should  strive  to  ac- 
complish, for  the  consciousness  of  the  unwavering,  wise  and 
self-denying  love  of  its  parents  is  the  strongest  influence  for 
good  that  ever  comes  into  the  life  of  a  child. 

"We  may  therefore  say :  Compassion  is  the  natural 
basis  of  the  social  virtue  of  active  benevolence,  but  it  is  by 
no  means  a  virtue  itself.  *  *  *  Like  every  phase  of  im- 
pulsive life,  it  must  be  educated  and  disciplined  by  reason; 
in  the  rational  will  it  is  both  realized  and  limited, — realized 
in  so  far  as  it  attains  its  end,  the  furtherance  of  human  wel- 
fare, limited  in  so  far  as  it  is  prevented  from  doing  harm." 
*     *     * 


COMPASSION  AND   BENEVOLENCE.  101 

JUSTICE. 

*"We  distinguish  between  two  phases  of  benevolence : 
a  negative  phase :  not  to  retard  welfare ;  and  a  positive  phase : 
to  promote  welfare.  These  two  phases,  regarded  as  special 
virtues,  give  us  the  virtues  of  justice  and  love  of  neighbor." 

"Justice,  as  a  moral  habit,  is  the  tendency  of  the  will 
and  mode  of  conduct  which  refrains  from  disturbing  the 
lives  and  interests  of  others,  and,  as  far  as  possible,  hinders 
such  interference  on  the  part  of  others.  This  virtue  springs 
from  the  individual's  respect  for  his  fellows  as  ends  in  them- 
selves and  as  his  coequals.  The  different  spheres  of  interest 
may  be  roughtly  classified  as  follows :  body  and  life ;  the 
family,  or  the  extended  individual  life;  property,  or  the 
totality  of  the  instruments  of  action ;  honor,  or  the  ideal  of 
existence ;  and  finally  freedom,  or  the  possibility  of  fashion- 
ing one's  life  as  an  end  in  itself.  The  law  defends  these  dif- 
ferent spheres,  thus  giving  rise  to  a  corresponding  number 
of  spheres  of  rights,  each  being  protected  by  a  prohibition : 
Thou  shalt  not  kill,  commit  adultery,  steal,  bear  false  witness 
against  the  honor  of  thy  neighbor,  and  interfere  with  his 
liberty.  To  violate  the  rights,  to  interfere  with  the  interests 
of  others,  is  injustice.  All  injustice  is  ultimately  directed 
against  the  life  of  the  neighbor ;  it  is  an  open  avowal  that  the 
latter  is  not  an  end  in  itself,  having  the  same  value  as  the 
individual's  own  life.  The  general  formula  of  the  duty  of 
justice  may  therefore  be  stated  as  follows :  Do  no  wrong  your- 
self, and  permit  no  wrong  to  be  done,  so  far  as  lies  in  your  poiver; 
or,  expressed  positively :    Respect  and  protect  the  right." 

"The  first  part  of  this  formula :  'Refrain  from  doing 
wrong,'  is  the  basis  of  the  virtue  of  rectitude  or  probity. 
*  *  *  Justice,  in  this  sense,  enjoins  limitation  of  self  by 
submission  to  a  general  rule.  *  *  *  'p|-,g  child  is,  at  the 
beginning  of  its  life,  naively  inconsiderate.  It  has  regard 
only  for  itself,  it  does  what  pleases  it,  without  being  seri- 
ously concerned  about  the  effect  of  its  behavior  upon  others. 
Only  gradually  does  it  come  to  understand  that  its  action 

*Paae  599. 


102  SYSTEM  OF  ETHICS. 

has  consequences  not  only  for  itself  but  for  others.  Its  at- 
tention is  called  to  this  fact  by  the  reaction  caused  by  its 
acts  in  others.  It  deprives  another  child  of  its  plaything; 
that  child  becomes  angry  and  reacts  accordingly.  We  may 
note  a  look  of  surprise  on  the  face  of  the  first  child;  only 
gradually,  after  experiencing  similar  treatment  from  others, 
does  it  begin  to  understand  the  meaning  of  this  surprise. 
Its  teachers,  too,  help  it  to  interpret  the  facts.  So  the  indi- 
vidual gradually  acquires  the  habit  of  considering  the  influ- 
ence of  his  own  conduct  upon  the  interests  of  others." 
*     *     * 

"This  is  one  side  of  justice;  he  is  a  just  man  who  lim- 
its his  acts  so  that  their  consequences  will  not  interfere  with 
the  interests  of  others." 

"The  other,  active,  side  of  justice  is  the  non-sufferance, 
the  warding  off  of  injustice,  first,  of  the  injustice  done  to 
others,  then  also  of  that  done  to  self.*  *  *  *  In  a  cer- 
ain  measure,  it  is  the  easier  duty.  To  suffer  wrong  inflames 
us;  not  only  does  the  wrong  which  I  myself  suffer  call  forth 
anger  and  the  impulse  to  revenge,  but  the  wrong  which  is 
inflicted  upon  a  third  person  also  arouses  in  the  disinterested 
spectator  a  violent  emotion,  indignation,  which  may  be  de- 
fined as  disinterested  anger  at  the  injustice  suffered  by  an- 
other, and  which  impels  us  to  take  the  part  of  the  injured 
person,  and  to  punish  the  evildoer  for  the  wrong.  In  the 
impulse  of  retaliation  we  have  the  instinctive  basis  of  pub- 
lic punishment.  In  the  latter  the  sympathy  of  the  disinter- 
ested party  for  the  victim  as  against  the  offender,  is  system- 
atized and  made  effective.  In  punishment  the  community 
reacts  against  the  attack  made  upon  one  of  its  members  and 
defeats  it." 

"The  significance  of  justice  for  human  conduct  is  shown  by 
the  effects  of  injustice.  The  immediate  effect  of  injustice  is  that 
it  disturbs  or  destorys  the  welfare  of  the  person  against  whom  it 
is  done.  There  are  also  indirect  and  secondary  effects.  Injustice 
creates  strife.  The  injured  person  seeks  to  re-establish  his  inter- 
ests at  the  expense  of  his  opponent,  and  to  revenge  himself  for  the 
injury  suffered.    The  aggressor  in  turn  defends  himself,  and  so  a 


COMPASSION  AND  BENEVOLENCE.  lOJ 

state  of  war  arises,  which  has  the  tendency  to  spread  to  all  those 
who  are  related  either  to  the  victim  or  the  aggressor  by  ties  of 
friendship  or  common  interests.  Another  effect  inseparable 
from  injustice  is  that  it  produces  a  feeling  of  insecurity,  not 
only  in  the  person  who  suffers  it,  but  in  all  those  who  wit- 
ness it."     *     *     * 

"A  condition  of  insecurity  paralyzes  life  and  action 
wherever  it  extends.  Human  conduct  differs  from  that  of 
animals,  the  conduct  of  civilized  man  from  that  of  savages, 
in  that  it  is  connected  and  systematic;  the  animal  lives  in  the 
present,  man  reckons  with  the  future.  But  arbitrary  interfer- 
ences on  the  part  of  others  render  all  calculations  of  the  future 
illusory.  *  *  *  Injustice,  therefore,  tends  to  undermine  the 
foundations  of  truly  human  life.  A  state  of  war  has  the  same 
effect ;  it  is  necessarily  a  state  of  insecurity  for  all  those  who 
actively  or  passively  participate  in  it.  It  has  the  further  effect 
of  consuming  and  paralyzing  the  powers  of  the  participants,  and 
consequently  to  that  extent,  hinders  them  from  solving  the  prob- 
lems of  individual  and  social  life." 

"Justice  is,  therefore,  good  because  it  has  the  tendency 
to  establish  and  maintain  a  state  of  security,  the  precondition 
of  systematized,  i.  e.,  human,  activity  and  peace,  the  precondi- 
tion of  social  life."     *     *     * 

*"We  can  now  demonstrate  the  teleological  necessity  of  posi- 
tive right.  Positive  right  has  its  place  in  the  state.  *  *  *  gy 
placing  itself  under  the  protection  of  might,  the  right  becomes  a 
power  in  the  world.  In  law,  the  state  formulates  the  right  as  the 
expression  of  its  will,  and  invests  it  with  its  power  to  overcome 
the  resistance  of  individuals.  *  *  *  The  penal  right  defines  the 
limits  of  the  spheres  (of  rightful  activity)  from  the  negative  side; 
it  determines  which  acts  shall  be  regarded  as  encroachments  or 
violations  and  therefore  punished.  The  private  right  deter- 
mines them  from  the  positive  side ;  it  defines  the  spheres  in 
family  rights  and  property-rights,  within  which  the  indi- 
vidual may  move  and  still  enjoy  the  protection  of  the  state. 
*  *  *  It  is  the  business  of  the  system  of  rights,  on  the 
one  hand,  to  assist  the  individual  in  regulating  his  conduct 

*Page  603. 


104  SYSTEM  OF  ETHICS. 

with  respect  to  others'  spheres  of  action;  it  saves  him  the 
trouble,  or  at  least  facilitates  the  process,  of  making  difficult 
and  complicated  computations  as  to  what  he  may  do  without 
injuring  the  just  rights  of  others.  It  likewise  checks  his 
inclination  to  do  wrong,  by  threatening  evil  consequences. 
*  *  *  On  the  other  hand  it  also  protects  him,  within  his 
restricted  sphere,  against  encroachments  on  the  part  of 
others.  The  system  of  rights  therefore,  brings  a  certain  de- 
gree of  objective  justice  or  legality  into  the  life  and  conduct 
of  the  members  of  the  legal  community,  and  maintains  it." 

"But  why  is  compulsion  exercised  here  while  so  many 
objectionable  and  pernicious  modes  of  conduct,  like  intem- 
perance, dissipation,  ingratitude,  mendacity,  do  not  occasion 
any  interference  on  the  part  of  the  community  with  the  indi- 
vidual? This  is  due  to  the  specific  nature  of  injustice.  The 
pernicious  eflfects  of  injustice  directly  affect  the  community 
and  its  conditions  of  life.  *  *  *  This  is  the  teleological 
necessity  which  has  impelled  every  nation  to  develop  a  legal 
order  and  the  technical  means  for  administering  the  same, 
and  which  encourages  it  constantly  to  improve  the  system. 
All  other  ofifenses  and  vices  are  dealt  with  by  custom,  educa- 
tion, spiritual  ministration,  and  the  personal  insight  of  the 
individual.  By  opposing  injustice  a  nation  defeats  attacks 
upon  the  conditions  of  its  own  existence."     *     *     * 

*"This  also  explains  the  right  of  the  community  to  compel 
lawful  behavior  on  the  part  of  the  individual  by  force  and  punish- 
ment. It  has  a  right  to  compel  and  punish  because  it  has  a  right 
to  preserve  itself.  And  this  right  is  at  the  sametime  a  duty, 
because  self-preservation  is  the  first  and  almost  only  duty  of  the 
community." 

"The  explanation  of  the  penal  right  forms  the  subject  of 
endless  debate.  Here  as  everywhere  in  practical  philosophy 
we  have  the  two  opposing  views  which  we  have  termed  the 
teleological  and  intuitional-formalistic.  The  latter  attempts  to 
justify  punishment  as  the  immediately  necessary,  ethical- 
logical  consequence  of  crime ;  the  former  explains  it  by  its 
effects  upon  human  welfare." 

*Page  606. 


COMPASSION    AND    BENEVOLENCE.  105 

It  is  not  necessary  for  us  to  enter  at  all  into  this  contro- 
versy. The  objects  that  should  be  sought  in  the  punishment 
of  crimes  and  offenses  against  the  law  are,  to  prevent  future 
offences  by  the  same  person,  either  by  restraining  his  liberty 
or  inducing  him  to  reform  his  character,  or  both;  and  to  warn 
and  dissuade  others  from  committing  similar  offenses. 

*"From  this  standpoint  we  can  also  understand  the 
duty  of  the  individual  to  cooperate  in  supporting  the  posi- 
tive right  and  in  battling  against  injustice.  *  *  *  This 
duty  is  recognized  by  the  state:  I  am  compelled  to  resist 
attacks  upon  the  right  by  serving  as  a  witness,  juror,  sol- 
dier, or  official.  But  the  individual  is  also  morally  bound  to 
protect  against  injustice  the  injured  right  in  general,  even 
when  it  is  not  protected  by  the  law.  It  is  the  virtue  of  the 
chivalrous  man  to  defeat  by  personal  intervention,  or  to  call 
to  account  before  the  courts  every  possible  form  of  injustice 
that  interferes  with  the  right,  especially  the  rights  of  the 
defenseless,  either  by  violence,  strategy,  or  temptation.  We 
must,  of  course,  exercise  due  care  in  this  regard,  for  injus- 
tice and  self-caused  misery  are  fond  of  giving  themselves  the 
air  of  injured  innocence."     *     *     * 

"The  jurist  properly  emphasizes  the  duty  to  respect  and 
protect  others'  as  well  as  our  own  rights  by  lawful  means,  and 
even  by  violent  means  if  necessary.  The  moralist,  on  the  other 
hand,  will  insist,  with  equal  propriety,  that  this  duty  is  not  abso- 
lute, that  the  duty  to  respect  and  protect  the  right  must  be  limited 
and  supplemented  by  the  demands  of  equity  and  magnanimity." 

''Equity  demands  that  we  voluntarily  resign  claims  and 
acts  to  which  we  have  an  undoubted  formal  right,  so  that  our 
own  interests  may  not  be  advanced  at  a  relatively  greater 
damage  to  those  of  others.  This  is  a  demand,  not  of  law, 
but  of  morality,  which,  it  must  not  be  forgotten,  is  rooted 
in  the  very  nature  of  justice.  *  *  *  j'q  insist  rigorously 
on  one's  rights  would  sometimes  be  violating  the  very  spirit 
of  justice,  for  justice  really  demands  that  the  different  inter- 
ests be  fairly  apportioned,  but  it  cannot,  on  account  of  its 
mechanical  nature,  wholly  adapt  itself  to  the  individual  cases, 

*Pa2e  613. 


106  SYSTEM  OF  ETHICS. 

and  hence  can  realize  its  end  only  imperfectly.  It  appeals 
to  the  fairmindedness  of  the  interested  parties  for  help,  and 
now  and  then  expressly  authorizes  the  judge  to  make  revis- 
ions in  the  interest  of  equity." 

''Magnanimity  is  the  virtue  which  does  not  requite  per- 
sonal injuries,  but  overlooks  them,  and  does  not  embrace  the 
opportunity  for  revenge,  even  though  it  present  itself.  Chris- 
tianity goes  so  far  as  to  demand  love  of  enemies:  Love  him 
who  sins  against  you,  as  a  brother,  and  not  only  bear  him 
no  grudge,  but  forgive  him  with  all  your  heart,  and  return 
good  for  evil." 

"The  command  of  the  Gospel  seems  difficult  and  almost 
unnatural.  *  *  *  fjas  not  nature  herself  taught  all  liv- 
uig  creatures  to  resist  attacks  so  that  they  may  defend  them- 
selves and  have  peace?  Certainly,  we  must  admit  it;  and 
resistance  and  resentment,  both  private  and  public,  are  justi- 
fiable in  their  proper  place.  But  they  are  not  in  every  case 
the  proper  means  of  establishing  and  ensuring  peace,  and 
hence  the  command,  'Resist  every  infraction  of  the  law  by  all 
lawful  means,'  cannot  have  absolute  validity.  A  neighbor 
insults  me  with  a  frivolous  remark,  or  treats  me  unkindly. 
Shall  I  summon  him  before  court?  Shall  I  obtain  satisfac- 
tion by  private  means?  *  *  *  Would  he  be  more  careful 
in  future?  Perhaps.  But  another  effect  would  surely  fol- 
low :  my  retaliation  would  leav€  a  sting  in  him ;  he  would 
consider  himself  the  affronted  party:  'For  such  a  trifle — on 
account  of  a  mere  word!'  he  would  say.  *  *  *  jj-^g  j^q_ 
ment  arrives  when  he  can  play  me  a  trick  or  do  me  a  favor, 
protect  me  against  damage.  He  makes  use  of  his  chance  by 
scornfully  reminding  me  of  my  former  conduct.  And  now  it 
is  my  turn  again.  I  simply  defended  my  good  rights  before; 
his  present  treatment  of  me  is  an  intentional  injury:  this  I 
shall  not  forget.  And  so  we  move  our  revenge  back  and 
forth,  intensifying  it  as  we  go,  making  our  enmity  deeper 
each  time.  Here  the  'struggle  for  the  right'  did  not  bring 
peace,  as  it  should  have  done,  but  the  bitterest,  most  per- 
nicious war,  sapping  the  strength  of  both  of  us.  How  dif- 
ferent it  would  have  been,  had  the  first  act  of  revenge  been 


COMPASSION    AND    BENEVOLENCE.  107 

omitted,  had  the  first  act  of  injustice  been  met  with  complete, 
free  forgiveness!  Perhaps  the  insulting  remark,  which  inau- 
gurated the  war  of  revenge,  might  have  formed  the  starting 
point  of  a  lasting  friendship.  *  *  *  My  forgiveness  and 
his  acceptance  of  the  same  are  guarantees  of  our  mutual  good 
will.  Thus,  to  speak  with  the  Apostle,  evil  has  been  over- 
come with  good.  There  is  no  grander  and  more  beautiful  art 
than  this ;  Jesus  does  not  forget  it  in  the  beatitudes : 
'Blessed  are  the  peacemakers.'  " 

"Spinoza  furnishes  us  with  the  psychological  formula  for 
it :  'Hatred  is  increased  by  hatred,  and  can,  on  the  other 
hand,  be  destroyed  by  love.  Hatred  which  is  completely  van- 
quished by  loves  passes  into  love ;  and  love  is  then  greater  than 
if  hatred  had  not  preceded  it.  Hence,  'the  wise  man  en- 
deavors, so  far  as  he  can,  to  render  back  love  and  kindness 
for  other  men's  hatred,  anger,  and  contempt.'  And  with  a 
warmth  not  usual  to  him  the  mathematical  judge  of  human 
affairs  adds :  "He  who  chooses  to  avenge  wrongs  with 
hatred  is  assuredly  wretched.  But  he  who  strives  to  con- 
quer hatred  with  love,  fights  his  battle  in  joy  and  confidence; 
he  withstands  many  as  easily  as  one,  and  has  very  little  need 
of  fortune's  aid.  Those  whom  he  vanquishes  yield  joyfully, 
not  through  failure,  but  through  increase  of  their  powers." 

*"If,  then,  both  modes  of  conduct  are  justifiable,  the 
question  arises :  How  are  we  to  limit  the  command  of  for- 
giveness and  the  command  of  retaliation^  When  is  the  former, 
when  the  latter,  in  place?  It  will  not  be  hard  to  give  a 
general  answer :  That  form  of  conduct  is  always  appropirate 
and  dutiful  which  in  each  case  tends  to  realize  the  ultimate 
end,  the  avoidance  of  further  injustice  and  promotion  of  last- 
ing peace.  If  to  forget  and  to  forgive  were  the  means  of 
iiindering  theft  and  of  preserving  the  institution  of  property, 
we  should  undoubtedly  make  exclusive  use  of  this  means.  If 
retaliation  and  punishment  were  the  sole  and  surest  means  of 
making  him  peaceful  and  kind  who  treats  us  impolitely,  un- 
kindly and  uncivilly,  we  should  also  know  what  to  do.  The 
trouble  is,  different  cases  require  different  treatment,  and  it 

Page  619. 


108  SYSTEM  OF  ETHICS. 

will  often  be  impossible  to  determine  with  certainty  what  is 
the  most  effective,  and  hence,  most  appropriate  method  of 
procedure  in  a  particular  instance.  It  certainly  cannot  be 
indicated  by  moral  philosophy  in  universal  propositions  or 
categorical  imperatives.  Only  experienced  moral  tact,  which 
takes  into  account  all  the  concrete  circumstances,  can  dis- 
cover the  proper  course  to  pursue  in  each  particular  case, 
which,  however,  does  not  exclude  the  possibility  of  error. 
Moral  philosophy  can  perhaps  merely  indicate  the  general 
points  of  view  from  which  each  case  must  be  considered.  We 
may  mention  the  following:  (1.)  Forgiveness  is  possible 
when  the  offence  is  directed  against  a  particular  person;  pun- 
ishment is  necessary  when  the  offence  is  directed  not  so  much 
against  a  particular  person  as  against  custom  and  law  in  gen- 
eral. Theft,  for  example,  is  not  a  crime  against  the  particu- 
lar person  as  such,  but  against  the  owner  as  such,  hence, 
against  the  institution  of  property.  *  *  *  (2.)  It  is  a 
fact  that  we  are  apt  to  be  reconciled  and  inclined  to  forgive- 
ness by  remorse.  And  justly  so.  Remorse  is  a  sign  that  the 
offence  was  not  the  expression  of  the  offender's  permanent 
will, — that  it  was  the  result  of  error,  accident,  haste,  or  care- 
lessness. If  no  attention  is  paid  to  his  remorse,  if  we  react 
by  punishing  him  or  taking  revenge,  a  revulsion  of  feeling  is 
likely  to  ensue.  His  remorse  vanishes,  he  has  expiated  his 
wrong,  nay,  he  is  apt  to  feel  that  he  has  more  than  expiated 
it,  and  he  now  has,  instead  of  a  debt  to  pay,  a  claim  which  he 
will  take  up  as  soon  as  opportunity  offers.  *  *  *  When, 
however,  remorse  is  lacking,  when  a  conscious  and  stubborn 
will,  when  impudent  malice,  commits  the  wrong  and  boasts 
of  it  and  rejoices  in  its  iniquity,  punishment  is  necessary  to 
terrify  and  to  break  the  wicked  will ;  perhaps  the  nature  of 
the  will  may  even  be  transformed  in  this  way.  *  *  *  The 
criminal  authorities  too,  endeavor  to  take  these  things  into 
account,  but  they  cannot,  in  the  very  nature  of  things,  easily 
adjust  themselves  to  the  particular  circumstances,  and  to  this 
is  due  the  inadequacy  of  public  punishment  as  compared  with 
that  employed  in  education.  It  necessarily  somewhat  re- 
Page  620. 


COMPASSION    AND    BENEVOLENCE.  109 

sembles  the  mechanical  process  of  nature,  which  does  not  con- 
sider the  intention,  but  merely  the  objective  facts.  Then,  again, 
the  judge  as  a  rule,  has  no  means  of  testing  the  genuineness  of 


remorse. 


*     * 


"The  third  item  is  the  following:  Wherever  persons  live 
together  in  permanent  relations,  as  husband  and  wife,  brother 
and  sister,  inmates  of  the  same  house,  relatives,  neighbors,  etc., 
the  command  of  Jesus,  not  to  forgive  your  brother  seven  times, 
but  seventy  times  seven,  will  be  especially  in  place.  Slight  colli- 
sions are  always  inevitable  where  persons  live  close  together. 
Whoever  insists  upon  his  rights  in  every  instance,  makes  life  in- 
tolerable for  himself  and  his  surroundings.  A  certain  measure  of 
toleration  is  an  absolute  precondition  of  peaceful  intercourse.  "Be 
not  righteous  overmuch,"  the  word  of  the  Preacher,  applies  here ; 
that  is,  be  careful  to  give  everyone  his  just  dues,  but  do  not 
always  rigorously  insist  upon  your  own  rights.  And  also 
remember  the  ninth  commandment  and  the  interpretation 
put  upon  it:  Speak  well  of  thy  neighbor  and  turn  all  things 
to  good !  To  good !  This  is  excellent  advice.  Your  brother 
is  close  and  rather  fond  of  money, — say  he  is  economical  and 
a  good  manager ;  he  has  a  tendency  to  express  his  views  some- 
what strongly  and  without  regard  for  the  feelings  of  oth- 
ers,— say  he  is  sincere  and  loves  the  truth;  he  is  fonder  of 
enjoyment  and  social  pleasures  than  you  deem  neces- 
sary,— say  he  is  cheerful  and  light-hearted.  The  man  who 
cannot  see  the  good  in  things,  who  always  looks  at  them 
from  the  worst  side,  who  is  constantly  finding  fault,  cannot 
live  with  men,  and  will  do  well  to  avoid  contact  with  them  as 
much  as  possible."     *     *     * 

"The  Principle  of  Rights.  *  *  *  The  question  now 
arises :  According  to  what  principle  is  the  line  to  be  drawn 
which  separates  the  spheres  of  the  dififerent  members  of  a 
legal  community  from  each  other?  *  *  *  xhe  system  of 
rights  *  *  *  limits  the  activity  or  the  liberty  of  each 
individual  to  a  particular  sphere,  and  at  the  same  time  defends 
him  in  this  against  the  encroachments  of  others." 

"The  principle  of  equality  seems  to  suggest  itself  as  the 
most  immediate  and  natural  principle :    Each  man  shall  count 


110  SYSTEM  OF  ETHICS. 

for  one;  the  interests  of  each  man  are  as  important  as  those 
of  every  other  one.  This  is  the  principle  with  which  the 
advocates  of  natural  rights  antagonized  the  positive  and  his- 
torical system  of  law  prevailing  in  the  seventeenth  and  eight- 
eenth centuries.  Starting  from  the  hypothesis  of  the  natural 
equality  of  individuals  they  demanded  equal  rights  for  all. 
The  conclusion  wouM  be  correct  if  the  premises  were  true.'' 
*  *  *  "Positive  law  has,  however,  never  acknowledged 
this  principle  of  the  absolute  equality  of  all  individuals;  and 
even  the  upholders  of  natural  rights  have  always  accepted 
certain  restrictions  as  self-evident.  There  never  has  been  equality 
of  rights  between  adults  and  children,  and  it  has  never  been 
demanded." 

There  has  never  been  equality  of  legal  rights  of  men  and 
women,  though  in  most  of  the  countries  of  Europe  and  in 
America  very  many  of  the  inequalities  have  been  removed. 

"The  principle  which  seems,  on  the  whole,  to  have  gov- 
erned the  development  of  positive  right  may  be  thus  stated  • 
The  spheres  of  rights  of  the  different  members  of  the  legal 
community  are  staked  off  according  to  the  spheres  of  action 
corresponding  to  their  natures  and  powers.  Equality  of 
rights  extends  as  far  as  there  is  general  natural  equality; 
corresponding  to  the  great  and  essential  differences  inherent 
in  the  nature  of  things,  we  have  differences  in  rights." 

Incongruity  between  Law  and  Morals.* 

"If  the  fullest  and  freest  development  and  exercise  of 
human  powers  and  capacities  is  the  highest  good  of  human 
life,  the  legal  order  may,  according  to  the  above,  be  defined 
as  a  mechanism  in  the  service  of  the  good,  whose  function  it 
is  to  harmonize  many  individual  forces,  with  the  least  expen- 
diture of  energy,  or  to  balance  many  partially  crossing 
spheres  of  interest,  with  the  least  injury  to  those  interests. 
The  more  perfectly  a  positive  legal  order  accomplishes  this 
result,  the  more  closely  it  realizes  the  purposes  of  the  law,  or 
what  ethics  demands  and  expects  of  the  law." 

"But  the  legal  system  can  never  absolutely  realize  this 
end.     It  lies  in  the  nature  of  a  mechanism  to  act  mechanic- 

*Page  627. 


COMPASSION  AND  BENEVOLENCE.  Ill 

ally,  that  is,  according  to  general  laws,  and  not  according  to 
the  requirements  of  a  particular  case.  The  legal  system  acts 
in  the  same  way :  individual  cases  are  decided  according  to 
general  rules.  *  *  *  The  reason  for  this  is  obvious : 
only  when  there  are  general  rules  or  laws,  can  the  individual 
know  and  do  the  right  with  certainty  and  ease,  and  only  in 
this  way,  too,  can  the  law  be  protected  against  the  arbitrari- 
ness of  those  administering  it.  *  *  *  The  safety  of  the 
law  depends  upon  its  uniformity.  The  legal  order  here  re- 
sembles the  natural  order.  *  *  *  Xhe  uniformity  of  the 
process  of  nature  is  teleologically  necessary  for  us  as  acting  and 
knowing  beings ;  and  the  uniformity  of  law  is  necessary  for 
the  same  reason." 

"But  this  very  uniformity  of  nature  is  fatal  to  our  pur- 
poses in  particular  instances.  *  *  *  There  are  no  ex- 
ceptions to  the  law  of  gravitation, — and  our  body  universally 
obeys  it,  like  everything  else.  At  times,  however,  it  causes 
injury  and  death.  Precisely  the  same  may  be  said  of  the 
legal  order:  as  a  rule  it  tends  to  preserve  and  produce  what 
is  by  nature  right,  but  cases  occur  in  which,  owing  to  its 
necessary  mechanical  operation,  the  moral  law  is  violated 
and  broken  by  the  positive  law.  *  *  *  xhe  law  protects 
contracts  which  were  made  in  legitimate  business,  without 
regard  to  whether  their  provisions  still  conform  to  justice  or 
not.  Owing  to  unforeseen  circumstances,  things  may  so  have 
changed  as  to  cause  the  ruin  of  one  of  the  contracting  par- 
ties should  the  contract  now  be  carried  out,  perhaps  without 
substantially  benefiting  the  other  party.  The  law  is  not 
concerned  about  that.  *  *  *  i|-  proceeds  on  the  assump- 
tion that  everybody  always  acts  with  a  complete  knowledge 
of  the  law  and  with  a  full  understanding  of  his  interests,  an 
indispensable  hypothesis  which,  however,  as  we  all  know,  is 
false." 

"The  same  is  true  of  criminal  law.  It  embraces  under 
the  same  formula  two  acts  which  are,  subjectively  or  morally 
considered,  infinitely  different  from  each  other.  Murder  is 
the  intentional  killing  of  a  man  with  malice  aforethought. 
and  is  punishable  with   death.     This  definition  includes  the 


112  SYSTEM  OF  ETHICS. 

open  and  honest  killing  of  a  dishonorable  and  base  scoun- 
drel who  has  ruined  the  honor  and  happiness  of  my  family 
through  some  dastardly  act,  without  having  rendered  himself 
amenable  to  the  criminal  law,  as  well  as  the  most  heinous  deed 
of  the  poisoner  and  assassin.  It  is  true,  the  criminal  law  at- 
tempts to  make  itself  more  elastic  where  the  discrepancy  is 
greatest,  in  order  to  adapt  itself  to  the  individual  case :  the 
discretionary  powers  of  the  judge  in  reference  to  the  punish- 
ment to  be  inflicted,  the  consideration  of  extenuating  circum- 
stances, and  the  possibility  of  pardon  are  means  to  this  end. 
But  it  is  clear  that  these  safeguards  are  not  sufificient  to  coun- 
teract the  errors  caused  by  the  mechanical  operation  of  the 
law."     *     *     * 

"Absolute  adaptation  of  the  law  to  the  particular  in- 
stance is  possible  only  when  the  law  appears  in  the  form  of  a 
personal  will,  as  is  the  case  in  home  education."  (But  few 
parents  are  wise  enough  to  make  the  law  of  their  personal 
will  adaptable  very  closely  to  the  requirements  of  each  in- 
stance of  home  discipline  or  administration.)  From  what 
has  preceded,  it  is  apparent  that  it  may  sometimes  be  morally 
right  to  do  what  is  forbidden  by  the  law.  We  may  go  far- 
ther and  say  that  it  sometimes  becomes  a  high  moral  duty  to 
perform  some  important  service  for  individuals  or  the  public, 
that  is  forbidden  by  the  law,  and  then  to  take  the  conse- 
quences in  prosecution  and  punishment  if  that  should  fol- 
low. This  happens  oftenest  of  course,  in  the  case  of  bad 
laws,  but  may  happen  even  when  the  law  is  good  in  its 
usual  application. 

"*  *  *  More  frequent  and  more  important  is  the 
other  case :  it  may  be  legally  possible  to  do  what  is  morally 
impossible;  a  man  may  be  guilty  of  the  most  serious  viola- 
tions of  the  moral  duty  of  justice  and  yet  remain  strictly 
within  the  limits  of  the  law." 

"The  positive  law  defines,  we  may  say,  only  a  part  of  the 
actual  right.  The  mechanical  nature  of  the  legal  order  makes 
such  a  limitation  necessary.  *  *  *  Hence,  the  legal  or- 
der confines  itself  to  enforcing  that  minimum  of  righteous 
acts  without  which  human  social  life  would  not  be  possible. 


COMPASSION  AND  BENEVOLENCE.  113 

It  thereby,  of  course,  leaves  a  wide  margin  for  injuries  and 
the  unjust  assertion  of  individual  interests  at  the  expense  of 
those  of  others.  It  does  not  enforce  the  payment  of  a  just 
wage,  but  simply  of  the  stipulated  one;  it  does  not  punish 
the  delivery  of  goods  inferior  to  those  the  contract  calls  for, 
but  only  fraud ;  it  does  not  compel  a  man  to  give  to  everyone 
the  honor  that  is  due  him,  but  merely  punishes  affronts.  A 
general  survey  of  all  the  spheres  of  rights  will  bring  out  this 
discrepancy  between  the  demands  of  the  law  and  the  demands 
of  morality," 

"The  legal  spheres  correspond  to  the  great  spheres  of  action 
or  the  circles  of  interests,  for  the  protection  of  which  the  legal 
order  exists.  The  first  and  narrowest  of  these  is  that  which  we 
may  embrace  under  the  heading,  'Body  and  Life.  Encroachments 
upon  this  domain  are  made  by  homicide,  disfigurement,  assault, 
and  all  attacks  upon  life  and  health.  *  *  *  If  we  mean  by 
encroachments  upon  this  domain  only  physical  assaults,  then  the 
law  seems  to  leave  no  room  for  infractions.  In  fact,  however, 
every  hurt  is  directed  against  body  and  life,  and  so  boundless  op- 
portunity is  offered  for  unpunishable  offences  against  others :  such 
as  causing  them  annoyance,  arousing  their  anger  or  grief,  ex- 
ploiting and  defrauding  them." 

"A  second  sphere  of  interests  is  bounded  by  the  family,  the 
expanded  individual  life.  Encroachments  upon  this  domain  are 
made  by  adultery,  abduction,  substitution  of  children,  seduction, 
and  similar  crimes.  The  more  pronounced  and  tangible  forms  of 
such  offences  are  reached  by  the  criminal  law ;  the  more  subtle 
forms  of  disturbing  the  peace  of  the  home  and  the  family :  tale- 
bearing, intriguing, — by  which  husbands  are  estranged  from  their 
wives  and  parents  from  their  children,  do  not  come  within  the 
reach  of  the  law." 

"A  third  sphere  of  interest  is  defined  by  'Property,'  which 
includes  the  sum-total  of  external  means  of  self-preservation  and 
voluntary  action.  Encroachments  upon  this  field  are  made  by 
*  *  *  all  such  offences  as  come  under  the  head  of  crimes 
against  property.  Here  again  the  criminal  law  cannot  reach  the 
more  subtle  methods  by  which  property  is  illegitimately  acquired 
at  others'  expense.     In  spite  of  the  efforts  of  the  law  to  punish 


114  SYSTEM  OF  ETHICS. 

the  offenders,  the  inventive  genius  of  the  lower  and  higher  crim- 
inal classes  always  outwits  the  law." 

"As  a  fourth  sphere  of  interests,  may  be  mentioned,  'Honor' 
or  ideal  self-preservation.  Encroachments  upon  this  domain  are 
made  by  insults,  false  reports,  slander.  In  these  cases,  much  more 
than  in  the  preceding  ones,  the  criminal  law  can  reach  only  the 
more  flagrant  and  careless,  but  not  the  more  subtle  and  shrewd 
violations,  which  are  not  the  less  injurious.  There  are  a  thou- 
sand anonymous,  indirect,  undiscoverable  ways  of  blasting  a  man's 
reputation  for  which  a  penal  formula  never  can  be  found." 

"The  fifth  sphere  of  interests  is  the  free  exercise  of  volition. 
Attacks  upon  the  liberty  of  others  are  made  by  kidnapping,  illegal 
arrest,  compulsion,  threats.  Breaches  of  domestic  peace  may  also 
be  placed  in  this  list.  *  *  *  ^q  one  enjoys  freedom  in  the 
full  sense  of  the  term  whose  life  and  strength  are  utilized  merely 
as  means  to  others'  ends.  Hence,  whoever  uses  men  in  this  way, 
or  attempts  to  reduce  them  to  such  a  state  or  to  keep  them  in  it, 
acts  contrary  to  the  law  of  justice,  which  demands  that  the  free- 
dom of  others  be  respected." 

"Finally,  we  may  also  add  a  sixth  sphere  of  interest,  which 
is  closely  connected  with  the  fourth  and  fifth,  the  spiritual  life. 
which  expresses  itself  in  convictions,  views,  beliefs,  religion,  mo- 
rality, and  habits  of  life.  Persecutions,  aspersions,  open  or  con- 
cealed signs  of  contempt,  scornful  neglect,  importunate  attempts 
at  conversion,  are  some  of  the  forms  of  interference  with  this 
field.  The  inner  state  which  tends  to  such  forms  of  injustice,  we 
are  in  the  habit  of  calling  intolerance.  It  has  its  natural  roots 
partly  in  man's  dependence  and  need  of  society,  the  gregarious 
instinct,  partly  in  his  arrogance  and  the  conceited  belief  in  his  own 
infallibility."  *  *  *  "The  opposite  habit  of  mind  is  called  'tol- 
eration,' liberality  of  mind  would  perhaps  be  a  more  appropriate 
term.  A  liberal  education  shows  itself  in  the  ability  to  understand 
what  is  strange  and  different.  It  is  acquired  only  by  frequent  con- 
tact with  the  extraordinary,  be  it  personal,  literary,  or  historical. 
In  narrow  spheres  the  mind  remains  narrow;  nations,  classes, 
scholastic  sects,  religious  communities,  which  live  for  themselves 
and  scarcely  come  in  contact  with  the  customs  and  opinions  of 
others,  are  universally  conspicuous  for  their  intolerance." 


COMPASSION  AND  BENEVOLENCE.  115 

"This  is  a  field  in  which  the  law  is  most  powerless.  It  can 
reach  violations  only  when  they  can  be  construed  as  libels,  which 
is  not  always  the  case.  And  yet  such  offenses  may  cause  serious 
injury.  *  *  *  xhe  law  is  powerless  against  them.  Never- 
theless, toleration  is  not  a  favor,  but  a  right;  morally,  every  one 
has  the  right  to  demand  that  we  do  not  interfere  with  his  habits, 
his  convictions,  and  his  thoughts,  if  he  is  determined  to  adhere  to 
them ;  and  it  is  a  duty  to  respect  this  right,  provided,  of  course,  the 
individual's  behavior  does  not  violate  the  rights  of  others.  I  have 
the  right  to  win  over  others  to  my  ways  of  thinking  and  acting, 
only  by  example  and  by  means  of  persuasion,  and  in  the  latter  case 
I  must  respect  the  rights  of  others  to  their  own  opinions.  The 
difficulty  arises  with  the  question :  To  what  extent  have  tastes, 
habits,  assertions,  opinions,  of  which  we  cannot  morally  approve, 
a  claim  to  toleration,  that  is,  to  what  extent  shall  we  concede  them 
equal  rights  ?  It  is  obvious  that  I  have  not  the  right  to  censure  or 
express  my  contempt  for  every  statement  which  cannot  be  justi- 
fied morally,  or  which  does  violence  to  my  moral  sense  or  taste. 
And  it  is  equally  obvious  that  I  am  not  bound  in  duty  to  allow 
everything  to  pass  without  contradiction :  it  may  be  in  the  highest 
measure  justifiable  to  express  my  contempt  openly.  Here  again 
no  formula  can  be  given  which  will  enable  us  to  decide  each  par- 
ticular case.  We  must  leave  it  to  tact  to  discover  what  is  proper 
under  these  circumstances." 


CHAPTER  VIII. 

LOVE  THY  NEIGHBOR.  SELFISHNESS,    LOVE. 

LIMITATIONS,    CHARITY.  VERACITY. 

LIE   OF    NECESSITY. 

PROMULGATE   THE   TRUTH,    MARTYRDOM    FOR   TRUTH. 

^"Beside  justice,  the  negative  side  of  benevolence,  we 
have  love  of  neighbor,  the  complementary,  positive  side.  We 
may  define  it  as  that  habit  of  will  and  mode  of  conduct  which 
assists  those  in  want,  and  strives  to  promote  the  welfare  of  oth- 
ers by  active  sympathy.  It  is  the  great  commandment  of  Chris- 
tianity. In  the  last  judgment  man's  worth  will  be  measured 
by  this  standard.  "Then  shall  the  King  say  unto  them  on  his 
right  hand, — I  was  an  hungered,  and  ye  gave  me  meat :  I  was 
thirsty,  and  ye  gave  me  drink:  I  was  a  stranger,  and  ye  took  me 
in :  naked,  and  ye  clothed  me :  I  was  sick,  and  ye  visited  me :  I 
was  in  prison,  and  ye  came  unto  me.'  Three  times  more  these 
works  of  mercy  are  enumerated, — a  sermon  powerful  in  its 
grand  simplicity." 

"The  commandment  is  so  simple  and  clear  that  no  doubt 
can  arise  as  to  its  meaning."  *  *  *  Questions  and  difficul- 
ties arise  when  we  seek  to  obey  the  command  in  every  day  liv- 
ing. If  every  opportunity  to  help  others,  with  time  or  money, 
were  to  be  accepted,  most  people  would  soon  be  without  money 
for  their  own  needs  or  the  needs  of  their  families,  and  without 
time  for  their  own  affairs.  It  is  evident  therefore,  that  there  are 
practical  limitations  to  the  services  to  be  rendered  to  one's  neigh- 
bors. 

"(1)  The  duty  to  care  for  the  welfare  of  others  is  lim- 
ited first,  by  the  duties  that  grow  out  of  one's  own  life.  The 
individual's  first  duty  is  to  develop  and  exercise  the  capacities 
and  powers  which  are  given  him,  and  to  make  his  own  life  beau- 
tiful and  good.  His  own  individual  life  is  the  field  which  it  is 
his  special  mission  to  cultivate.  For  this  work  he  is  especially 
fitted  by  natural  inclination  and  insight.     In  the  last  analysis 

*Page  638. 


LOVE   THY    NEIGHBOR.  117 

every  man  knows  what  is  good  for  him  better  than  anybody  else. 

*  *  *  And  so  we  shall  be  obliged  to  say :  Each  person  does 
the  most  for  himself  and  others  when  he  makes  the  most  of  him- 
self."    *     *     * 

"We  cannot  question  the  validity  of  the  universal  proposi- 
tion.   The  difficulty  lies  in  its  application  to  concrete  conditions. 

*  *  *  This  cannot  be  decided  by  the  general  formula  of 
duty,  but  only  by  a  consideration  of  the  concrete  circumstances; 
it  will  ultimately  be  decided  not  by  the  reason  but  by  the  heart. 
And,  as  a  rule,  we  shall  feel  inclined  to  applaud  the  man  who 
obeys  his  heart  more  than  his  reason  in  these  things.  We  ad- 
mire the  heroism  of  a  woman  who  resolves  to  follow  her  hus- 
band into  solitudes,  into  exile,  or  into  imprisonment.  We  respect 
the  sister  of  charity  who  sacrifices  her  life  and  gives  up  every- 
thing to  nurse  strangers  upon  their  sick-beds  during  the  long 
weary  days  and  nights.  We  say  it  is  altogether  possible  that 
such  a  nature  develops  and  exercises  the  gifts  with  which 
it  is  endowed — a  warm  heart,  a  skillful  and  tender  hand,  a 
consoling  courage — most  perfectly  in  such  a  calling,  and  so 
realizes  the  fullest  and  most  beautiful  form  of  life  possible. 
But — what  is  good  for  one  is  not  good  for  all." 

"(2)  The  duty  of  caring  for  the  welfare  of  my  neighbor 
must  be  limited  in  another  way ;  I  must  guard  against  destroy- 
ing his  independence,  *  *  *  for  self-reliance  is  a  general 
precondition  of  a  healthy  and  normal  life.  The  object  of  all 
help  is,  after  all,  to  make  help  superfluous.  *  *  *  j^  q^^. 
cation  we  have  an  example  of  the  most  comprehensive  and 
deliberative  care  for  others.  It  is  governed  solely  by  the 
consideration  that  we  must  train  the  pupil  so  that  he  can  take 
care  of  himself."    *     *     * 

"(3)  There  is,  finally,  a  third  restriction,  or  rather  nar- 
rower determination,  of  the  universal  duty  of  love  of  neigh- 
bor :  that  made  necessary  by  our  special  duties  toward  spe- 
cial neighbors.  Every  man  is  related  to  persons  who  have 
special  claims  upon  his  benevolence  and  active  sympathy — 
to  children  and  parents,  relatives  and  friends,  servants  and 
laborers,  neighbors  and  inmates  of  the  same  house.  His 
strength  and  possessions  belong  to  these  first  of  all."*    *    *    * 


118  SYSTEM  OF  ETHICS. 

"By  these  special  conditions,  the  virtue  of  charity  or  love 
of  neighbor  is  confined  to  a  fixed  channel,  as  it  were,  through 
which  it  flows  as  a  permanent  stream  and  fructifies  its  banks. 
Here,  too,  everybody  knows  with  some  degree  of  certainty 
what  is  good  for  those  nearest  to  him,  but  it  is  much  more 
difficult  and  often  impossible  to  tell  how  to  help  strangers. 
And  here,  too,  we  must  think  of  the  collective  bodies  to  which 
the  individual  belongs.  The  community  and  the  nation  have 
legitimate  claims  upon  him,  and  their  permanent  charitable 
institutions  supply  him  with  a  safe  channel  in  which  to  ex- 
ercise his  sympathy  with  others'  welfare." 

"The  formula  of  the  love  of  neighbor :  care  for  the  wel- 
fare of  others,  must  therefore  be  limited  and  supplemented 
as  follows :  In  so  far  as  this  can  be  done  without  neglecting 
the  problems  of  your  own  life,  without  violating  the  special 
duties  which  arise  from  your  special  relations  to  individuals 
and  collective  bodies,  and,  finally,  without  weakening  the  self- 
reliance  of  others." 

*"Common  sense,  by  beneficence,  means  above  all,  so- 
called  almsgiving,  and  popular  opinion  is  to  this  day  some- 
what inclined  to  regard   almsgiving  as   absolutely  meritorious. 

*  *  *  Moral  philosophy  cannot  subscribe  to  this  view, 
except  to  a  very  limited  extent.  Promiscuous  almsgiving  per- 
haps results  in  more  evil  than  good.  *  *  *  If  a  beggar's 
life  is  not  a  good  life,  then  almsgiving,  which  promotes  beg- 
gary, is  not  beneficence.  ***];{  i\^q  flooding  of  a  coun- 
try with  beggars  is  a  plague,  it  is  evidently  an  ofifense  against 
the  welfare  of  the  country  to  encourage  the  thing.  To  be 
sure,  the  prohibition  of  mendicancy  and  almsgiving  ought 
simply  to  be  the  other  side  of  organized  public  charity,  which 
finds    work    for    the    unemployed    and    helps    those    in    need. 

*  *  *  A  particularly  deplorable  form  of  almsgiving  has 
been  developed  of  recent  years :  the  charity-craze.  Misfor- 
tune, poverty,  and  misery  are  made  the  pretexts  for  entertain- 
ments of  all  kinds,  such  as  concerts,  theatrical  performances, 
balls,  bazaars — at  which  elegant  and  beautiful  ladies  bargain, 

*Page  642. 


LOVE   THY    NEIGHBOR.  119 

play,  and  flirt  with  elegant  and  rich  gentlemen,  all  for  sweet 
charity's  sake.  I  must  confess  that  this  union  of  amuse- 
ment and  'charity'  seems  to  me  an  extremely  sad  sign  of  the 
times.  This  playing  with  distress  shows  how  insensitive  cer- 
tain social  classes  have  become  to  the  seriousness  and  wretched- 
ness of  life."     *     *     * 

"*The  opposite  of  love  of  neighbor  is  heartless  selfish- 
ness, which  seeks  its  own  advantage,  regardless  of  others  or 
even  at  the  expense  of  others.  The  intensification  of  it  is 
malice,  which  takes  pleasure  in  the  distress  and  sufferings  of 
others  even  without  advantage  to  self.  As  cruelty  it  causes 
physical  or  mental  sufferings,  simply  in  order  to  feed  upon 
them." 

"This  habit  does  not  commonly  express  itself  in  those 
brutal  attacks  upon  the  persons  and  interests  of  others  which 
the  criminal  law  pursues,  but  in  the  thousand  little  inconsid- 
erate, malicious  acts  which  are  observed  in  our  daily  inter- 
course with  men.  *  *  *  A  field  in  which  cold-hearted- 
ness  and  malice  are  particularly  common  is  the  habit  of  sit- 
ing in  judgment  upon  one's  neighbor.  Everything  that  the 
latter  says  or  does  is  misconstrued  and  spitefully  exposed  to 
the  ridicule  and  ill-will  of  his  fellows.  An  evil  or  a  base 
motive  is  always  imputed  to  him,  his  prosperity  is  attributed 
to  evil  means,  his  misfortune  is  regarded  as  his  own  doing." 

"It  is  this  base  tendency  in  human  nature  which  the 
Gospel  attacks  with  such  zeal.  Even  if  your  opinion  is  cor- 
rect, it  is  not  your  mission  to  sit  in  judgment  upon  your 
neighbor.  He  is  not  accountable  to  you,  but  to  God,  and  in 
His  sight  you  are  no  less  guilty  than  he.  Hence,  'Judge  not, 
that  ye  be  not  judged ;  condemn  not,  that  ye  be  not  con- 
demned.' " 

"The  opposite  of  unfeelingness  is  Love,  as  Paul  describes 
it :  'It  suffereth  long  and  is  kind,  envieth  not,  and  vaunteth 
not  itself,  is  not  puffed  up,  doth  not  behave  itself  unseemly, 
seeketh  not  her  own,  is  not  easily  provoked,  thinketh  no  evil, 

*  Page  648. 


120  SYSTEM  OF  ETHICS. 

rejoiceth  not  in  iniquity,  but  rejoiceth  in  the  truth;  beareth 
all  things,  believeth  all  things,  hopeth  all  things,  endureth 
all  things.'  " 

"The  thirteenth  chapter  of  Corinthians  has  been  called 
the  Song  of  Love.  Perhaps  we  may  more  properly  call  it 
the  simplest  description  of  love  in  its  most  modest  form, 
*  *  *  which  does  nothing  extraordinary  and  grand  and  sensa- 
tional *  *  *  but  simply  consists  in  taking  and  bearing  the 
neighbor  as  he  is,  which  does  not  court  favors  from  him  but  meets 
him  every  day  with  the  same  or  greater  kindness.  This  is 
the  real,  true  love  of  neighbor,  and  when  it  enters  a  house 
it  brings  happiness,  not  the  great  happiness  of  which  people 
speak,  but  the  little  work-a-day  happiness,  the  true  happi- 
ness. And  this  love  and  happiness  as  gladly  abides  in  modest 
homes  as  in  proud  palaces,  or  much  rather;  at  any  rate  it 
desires  to  dwell  in  modest  hearts  alone,  not  in  haughty  and 
covetous  souls." 

"*  *  *  The  immediate  efifect  of  active  benevolence 
is  that  it  lightens,  elevates,  and  promotes  the  life  of  him  upon 
whom  it  is  bestowed.*  It  also  inspires  him  with  courage  and 
confidence  for  the  future.  It  at  the  same  time  fills  him  with 
kindly  feelings,  not  only  toward  the  benefactor,  but  towards 
the  whole  world ;  charity  wants  to  be  passed  along,  to  go  from 
hand  to  hand,  without  end.  *  *  *  Active  benevolence, 
however,  also  enriches  and  blesses  the  life  of  him  who  prac- 
tices it.  We  are  not  made  poorer  by  giving,  says  an  old 
proverb :  ('There  is  that  scattereth  and  yet  increaseth ;  and 
there  is  that  withholdeth  more  than  is  meet,  but  it  tendeth  to 
poverty.' — Proverbs  11:24.)  Certainly  not,  we  are  made 
richer,  if  not  in  outward,  at  least  in  inner  blessings."*    *    *    * 

"And  the  reverse  is  also  true.  There  is  no  surer  way  to 
unhappiness  than  a  selfish  heart.  *  *  *  Benevolence 
brings  peace  and  joy;  selfishness  arouses  enmity  and  unhap- 
piness; love  is  life;  selfishness,  death." 

Paulsen's  discussion  of  gratitude,  and  its  opposite,  in- 
gratitude, and  love  of  home,  of  country  and  humanity,  are  in- 
teresting but  are  too  long  for  quotation  and  not  readily  epi- 
tomized. 

*Page  652. 


CHAPTER  IX. 

VERACITY. 

"Veracity  may  be  regarded  as  a  form  of  benevolence; 
it  is  benevolence  manifested  in  the  communication  of 
thoughts."* 

"We  may,  as  in  the  case  of  benevolence,  distinguish  two 
phases  of  veracity :  a  negative  side  and  a  positive  side.  The 
former,  corresponding  to  justice,  is  expressed  by  the  formula 
of  duty:  Thou  shalt  not  lie;  the  latter,  corresponding  to  love 
of  neighbor,  is  expressed  by  the  formula  of  duty:  Serve  thy 
neighbor  with  the  truth." 

"Let  us  first  discuss  the  negative  side."  "To  lie,  as  we 
are  accustomed  to  define  it,  means  willingly  and  wittingly 
to  tell  an  untruth  in  order  to  deceive  others.  Perhaps  it  will 
not  be  unnecessary  to  make  the  definition  a  little  narrower 
by  taking  account  of  the  fact  that  falsehood  sometimes  shel- 
ters itself  behind  formal  excuses.  In  the  first  place,  of  course, 
words,  be  they  spoken  or  written,  are  not  essential  to  false- 
hood. We  can  lie  without  words,  by  acts  and  gestures,  or 
even  by  keeping  silent.  An  absent  one  is  slandered  in  your 
presence;  you  know  that  what  is  said  is  not  true,  but  you 
have  not  the  courage  to  contradict  it;  *  *  *  so  you  are 
silent,  or  smile  knowingly.  That  is  lying.  Or  you  wish  an 
evil  report  concerning  a  third  party  to  be  circulated,  but  you 
are  not  willing  to  shoulder  the  responsibility,  and  so  you 
begin:  'Have  you  heard  what  is  being  said  of  so-and-so?' 
The  newspapers,  as  well  as  gossiping  women,  are  in  the 
habit  of  lying  in  this  way :  Tt  is  said  *  *  *' .  'j^^  circles 
which  are  usually  well  informed  it  is  rumored.'  " 

"Equivocation  is  another  favorite  trick  of  the  liar.  L. 
Schmidt  gives  a  few  examples  from  Greek  life :  The  Locrians 
made  a  compact  with  the  Sicilians,  and  swore  that  they 
would  keep  it  as  long  as  they  trod  the  same  earth  and  car- 

*Page  664. 


122  SYSTEM  OF  ETHICS. 

ried  their  heads  upon  their  shoulders.  Previously,  however, 
they  had  put  earth  in  their  shoes,  and  had  placed  garlic 
heads  upon  their  shoulders  under  their  garments." 

"Another  favorite  mode  of  procedure,  developed  to  an 
art  by  politicians  and  historians,  is  to  let  the  facts  them- 
selves lie.  In  discussing  one  side  of  a  question,  an  historian 
chooses  the  most  venomous  speeches  and  deeds  of  its  extreme 
supporters,  and  the  criticisms  and  self-reproaches  of  the  mod- 
erate wing;  in  presenting  the  other  side,  he  selects  the  most 
satisfactory  tenets,  the  most  commendable  or  tolerable  acts 
of  its  friends.  Thus,  by  skillfully  selecting  and  arranging, 
we  can  make  anything  out  of  everything.  This,  too,  is  the 
method  of  the  reviewer  who  does  not  like  a  book;  he  tears 
out  a  handful  of  phrases  or  sentences,  surrounds  them  abun- 
dantly with  quotation  marks,  occasionally  inserts  a  word  or 
two,  and  places  the  stuffed  monster  before  the  eyes  of  the 
reader,  thereby  arousing  his  righteous  indignation.  There 
is  no  absurdity  that  cannot  be  drawn  from  a  book  in  this 
way.  A  particularly  favorite  trick  of  recent  years  is  to  lie 
by  arranging  the  figures.     Figures  do  not  lie,  it  is  said;  this 

is  not  true ;  they  will  prove  whatever  is  expected  of  them." 
*     *     * 

"All  these  things,  then,  come  under  the  head  of  falsehood : 
To  lie  means  to  influence  others  to  accept  views  which  you 
do  not  regard  as  true  yourself,  by  means  of  speech  or  silence, 
by  simulation  or  dissimulation,  and  by  the  selection  and 
arrangement  of  facts." 

"Why  is  lying  wrong?  Intuitional  ethics  answers 
with  common  sense :  Because  it  is  inherently  wrong  and 
disgraceful.  Kant  reckons  veracity  among  the  duties  to  self: 
he  regards  falsehood  as  the  abandonment  of  one's  dignity  as 
a  man,  and  places  it  on  a  level  with  suicide:  as  the  latter 
destroys  the  physical  life,  so  the  former  destroys  moral  life." 

"This  view  is  well  fitted  for  the  practical-rhetorical  treat- 
ment of  the  subject.  Indeed,  Kant  is  often  an  admirable 
moral  preacher.  But  it  is  the  business  of  moral  philosophy 
to  discover  the  objective  ground  of  morality  *  *  *  in  the 
efifects   which   falsehood   naturally  tends   to  leave   upon  the 


VERACITY.  .  123 

conduct  of  human  life.  They  are  not  hard  to  find.  False- 
hood directly  injures  the  deceived  party  in  so  far  as  false 
ideas  lead  to  false  acts.  As  a  rule,  this  is  the  purpose  of  the 
lie.  Thus  falsehood  is  a  means  of  injustice,  and  therefore 
shares  in  the  judgment  pronounced  upon  the  latter.  But 
falsehood  has  a  specific  effect  besides.  So  far  as  it  can,  it 
destroys  faith  and  confidence  among  men,  and  consequently 
undermines  human  social  life — the  foundation  of  all  real 
human,  of  all  mental  historical,  life.  And  this  explains  its 
particular  reprehensibleness.  We  may  illustrate  the  influence 
of  falsehood  by  counterfeiting.  *  *  *  The  existence  of 
spurious  coin  brings  the  good  money  into  disrepute.  Should 
spurious  coins  become  so  numerous  as  to  make  it  necessary 
to  test  every  piece  before  accepting  it,  this  would  be  equiva- 
lent to  the  abolition  of  money  as  such,  for  its  purpose  is  to 
relieve  the  individual  of  the  necessity  of  testing  its  value. 
Lies  invalidate  the  truth,  and  the  outcome  is  universal  dis- 
trust and  isolation.  *  *  *  When  the  liar  loses  the  con- 
fidence of  others,  he  also  loses  confidence  in  them;  it  is  psycho- 
logically necessary  for  the  man  who  lies  to  expect  others  to 
do  the  same.  There  can  be  no  doubt  that  this  dual  distrust 
is  not  a  favorable  condition  of  life :  like  a  poisoned  stratum 
of  air,  it  envelops  a  life  and  excludes  it  from  fellowship  with 
human  beings;  the  honest  and  sincere  men,  especially,  are 
repelled,  for  they  cannot  breathe  an  atmosphere  of  falsehood 
and  distrust."     *     *     * 

"Hence,  it  follows  from  the  very  nature  of  falsehood  that 
it  poisons  speech,  undermines  confidence,  destroys  collective 
life,  and  so  attacks  the  very  fibers  of  human  existence." 

"Another  factor  helps  to  make  the  lie  still  more  repre- 
hensible ;  it  is  a  sign  of  cowardice.  It  steals  upon  its  victim, 
instead  of  vanquishing  him  in  open  battle.  A  brave  man  will 
not  lie.  The  accusation  of  falsehood  always  carries  with  it 
the  charge  of  cowardice,  hence  it  wounds  a  man  more  deeply 
than  almost  any  other  charge.  'You  lie'  means  at  the  same 
time :    'You  are  a  cowardly  knave.'  " 

"Everything  that  makes  the  lie  despicable  and  base 
is  included  in  calumny.'     We  might  rhetorically  define  it  as 


124  SYSTEM  OF  ETHICS. 

the  murderous  attack  of  the  assassin  upon  the  ideal  self  of 
another.  In  'Othello'  Shakespeare  portrays  the  natural  his- 
tory of  calumny  with  awful  faithfulness  and  cruelty.  lago 
strangles  the  innocent  wife  by  the  hands  of  her  husband. 
Had  lago  killed  Desdemona  with  his  own  hand  and  robbed 
her  as  a  pirate,  he  would  have  been  an  honest  man  beside 
the  real  lago.  The  fact  that  he  cannot  even  be  called  to 
account  before  a  human  judge  makes  the  matter  all  the 
worse — for  what  did  he  do  but  act  in  good  faith  in  calling 

Othello's  attention  to  the  dangers  threatening  his  honor?" 
*    *     * 

"Moreover,  we  must  not  forget  that  two  persons  are 
always  necessary  to  make  a  slander  possible.  Just  as  the 
thief  needs  the  receiver  of  stolen  goods,  the  caluminator  needs 
a  person  to  accept  his  words  and  to  put  them  in  circulation. 
And  just  as  stealing  would  be  impossible  on  the  large  scale 
without  receivers  of  stolen  goods,  the  business  of  calumny 
would  be  impossible  if  there  were  not  so  many  to  delight  in 
it  and  encourage  it."     *     *     * 

"Another  modified  form  of  the  lie  is  flattery.*  It  is  so 
repulsive  because  it  creeps  in  under  the  guise  of  friendship 
to  defraud  its  victim.  However,  here  again  two  people  are 
necessary:  one  to  do  the  flattering  and  one  who  allows  him- 
self to  be  flattered.  As  a  plaster  draws  blisters,  so  self- 
conceit  provokes  flattery.  Hypocrisy  is  a  form  of  flattery. 
Religious  -hypocrisy  used  to  be  common.  *  *  *  The  ef- 
fect of  hypocrisy  is  the  same  as  that  of  all  lying:  as  forgery 
makes  us  suspect  the  genuine,  hypocrisy  brings  religion  into 
hatred  and  contempt.  Hence,  all  truly  religious  natures  hate 
hypocrisy  and  all  sincere  persons  hate  assumed  'orthodoxy' 
like  death." 

"Falsehood  raised  to  the  highest  power  is  perjury.  It 
is  the  lie  accompanied  by  the  formal  and  solemn  assurance 
that  it  is  the  truth.  Perjury  has  everywhere  and  always  been 
regarded  as  one  of  the  greatest  crimes,  as  a  sign  of  extreme 
viciousness  and  baseness.  We  can  defend  ourselves  against 
violence  by  violence,  strategy,  we  meet  with  strategy :  these 

*Page  670. 


VERACITY.  125 

are  the  means  of  war,  which  may  be  followed  by  an  honorable 
peace  after  the  matter  has  been  fought  out.  But  perjury  cuts 
off  all  possibility  of  a  return  of  friendship.  There  is  no  de- 
fence, no  weapon  against  perjury;  helplessly  and  with  a  feel- 
ing of  horror,  man  appeals  to  the  gods  when  he  has  been 
deceived   by   perjury,   to   punish    such   an   enormous   crime." 

"The  Lie  of  Necessity.*  A  problem  that  has  given 
the  moralists  the  greatest  trouble  is  the  lie  of  necessity.  Is 
deception  under  all  circumstances  morally  wrong,  or  can  con- 
ditions arise  under  which  it  is  permissible  or  even  morally 
necessary?" 

"In  our  actual  judgments  and  actions,  we  expreience  no 
difficulty  in  answering  this  question ;  everybody  acknowledges 
the  possibility  of  the  'necessary  lie.'  There  is  not  a  physician 
in  the  whole  world  who  does  not  at  times  give  deceptive 
answers  to  the  questions  of  his  patients,  who  does  not  arouse 
hopes  which  he  does  not  share.  He  does  not  reproach  him- 
self for  doing  so ;  neither  do  others  blame  him.  Indeed  every- 
body does  the  same  thing  under  similar  circumstances.  *  *  * 
Fire  broke  out  during  a  performance  in  a  theatre  in  Zurich. 
When  the  stage  manager  discovered  it,  he  appeared  before 
the  scenes  and  announced  that,  owing  to  the  sudden  illness 
of  an  actor,  the  performance  would  have  to  be  suspended. 
The  theatre  was  emptied  without  any  trouble,  and  then 
burned  to  the  ground.  Will  anyone  dare  to  condemn  this 
happy  idea  as  a  lie?     *     *     *" 

"Only  among  moral  philosophers  do  we  still  find  per- 
sons who  regard  the  matter  as  serious.  Kant  declares :  False- 
hood, that  is,  intentional  untruthfulness,  is  under  all  circum- 
stances, 'by  its  mere  form,  a  crime  of  man  against  his  own 
person,  and  a  baseness  which  must  make  a  man  despicable  in 
his  own  eyes.'  When  a  man  misdirects  a  murderer  in  search 
of  his  victim,  and  dexterously  turns  him  into  the  hands  of 
the  police,  we  cannot  excuse  him :  he  has  told  a  lie ;  he  has 
therefore  forfeited  his  dignity  as  a  man !  And  Fichte  once 
said,  with  his  usual  rhetorical  fanaticism,   T  would  not  break 

*Page  672. 


126  SYSTEM  OF  ETHICS. 

my  word  even  to  save  humanity.'  Let  us  apply  this  principle 
in  practice.  Suppose  that  I  had  promised  some  one  to  call 
for  him  at  five  o'clock  for  a  walk,  and  that  on  my  way  to  his 
house,  I  saw  a  child  fall  into  the  river.  If  I  followed  Fichte, 
I  should  say  to  myself:  'If  you  pull  it  out,  you  will  have  to 
go  home  and  change  your  clothes,  which  will  make  it  impos- 
sible for  you  to  keep  your  engagement ;  hence  you  must  hurry 
on,  sorry  though  you  may  be.'  Or  would  it  be  right  for  me 
to  assume  that  my  friend  would  give  his  consent  in  such  a 
case,  and,  acting  on  this  belief,  to  break  my  engagement?" 
Whether  the  friend  would  consent  or  not,  the  obligation  to 
save  the  child  is  paramount  to  the  obligation  to  keep  the 
appointment. 

"Practice  not  only  contradicts  the  theory  here,  but  is 
even  theoretically  correct  in  its  opposition  to  these  theorists. 
It  may  be  that  the  lie  of  necessity  does  not  fit  into  the  system 
of  a  moralist,  but  that  merely  proves  the  inability  of  his 
system  to  comprehend  moral  things.  A  teleological  ethics 
finds  no  difficulty  in  explaining  the  phenomenon  in  question." 

"Intentional  deception  is  objectively  reprehensible,  as 
was  shown  above,  because  it  tends  to  destroy  confidence,  and 
thus  lead  to  the  disintegration  of  the  social  organism.  In 
cases  where  this  effect  cannot  possibly  occur,  owing  to  the 
very  nature  of  things,  it  is  not  reprehensible.  Let  us  take  an 
example.  No  relation  of  confidence  can  be  destroyed  by  de- 
ceiving a  burglar,  because  absolutely  none  exists,  neither  a 
special  relation,  nor  a  universally-human  one.  In  so  far  and 
so  long  as  such  lawbreakers  follow  their  calling,  they  stand 
outside  of  the  pale  of  confidence,  and  thereby  forfeit  all  claims 
to  the  truth,  nor  will  they  expect  to  receive  it." 

"The  case  is  somewhat  similar  in  war.  *  *  *  Decep- 
tion is  one  of  the  rules  of  war :  everybody  practices  it  and 
expects  the  enemy  to  do  the  same.  The  rules,  however,  apply 
only  to  the  game.  Whenever  in  war  an  individual  comes  in 
contact  with  another  individual  not  as  a  foe  but  as  a  human 
being,  then  the  universal  rule  of  human  intercourse  again 
demands  its  rights.  The  same  is  true  whenever  the  game  of 
war  is  temporarily  suspended  by  mutual  agreement :  to  break 


VERACITY.  127 

an  armistice,  to  ambush  the  bearer  of  a  flag  of  truce,  is  dis- 
graceful and  dishonorable."     *     *     * 

"Another  case  which  may  make  intentional  deception 
permissible  or  necessary  is  the  inability  of  the  other  party 
to  understand  or  to  bear  the  truth.*  It  may,  for  example, 
under  circumstances,  have  a  quieting  effect  upon  insane  per- 
sons to  enter  into  their  delusions.  It  is  often  necessary  to 
accommodate  oneself  to  the  weak-minded.  This  is  true  of 
old  people  who  have  grown  weak-minded ;  they  have  lost  the 
faculty  of  seeing  and  judging  things  in  their  true  relations, 
but  not  the  faculty  of  becoming  excited  by  occasionally  mis- 
interpreting them.  We  are  compelled,  for  example,  to  make 
certain  arrangements  contrary  to  the  wishes  of  our  old  par- 
ents. Is  it  right  to  conceal  our  plans,  or  to  deny  them?  It 
is  a  hard  thing  to  do ;  it  seems  like  a  breach  of  old  confidential 
relations.  And  yet  every  one  will  at  times  decide  to  pursue 
such  a  course,  and  justly  so,  for  what  good  would  it  do  to 
tell  them?  *  *  *  The  case  is  different  in  our  intercourse 
with  children ;  and  here  we  are  often  too  ready  to  have  re- 
course to  the  most  convenient  form  of  deception  that  happens 
to  present  itself.  The  deception  persists  in  memory;  when 
the  intelligence  develops  and  recognizes  it  as  such,  it  may 
afterwards  seriously  undermine  the  child's  faith.  Besides, 
another  escape  is  always  at  hand ;  we  can  refuse  to  answer 
the  child's  questions  by  saying:  'You  do  not  understand  these 
things  yet,'  or,  'They  do  not  concern  you.'  It  would,  how- 
ever, be  wholly  impossible  to  treat  old  people  in  this  way, 
even  if  it  were  proper." 

"But,  some  one  might  ask  in  troubled  tones,  where,  then, 
shall  we  draw  the  line?  The  transition  to  childish  old  age  is 
a  gradual  one.  Where  may  one  begin  to  deceive?  And  if  I 
may  deceive  a  weak-minded  person,  then  why  not  a  stupid  block- 
head? And  where  shall  this  end?  And  who  is  to  decide  how 
to  classify  the  individuals  in  question?  Only  one  answer  can 
be  made  to  such  questions.  Such  fixed  boundaries  do  not  exist 
in  morals.     The  law  draws  hard  and  fast,  and  therefore  arbitrary, 

*Page  677. 


128  SYSTEM  OF  ETHICS. 

lines,  while  morality  has  everywhere  to  do  with  gradual  transi- 
tions. The  particular  case  must  necessarily  be  decided  by  the 
individual's  own  insight  and  conscience,  and  with  a  view  to  the 
concrete  conditions.  Morality  cannot  give  him  a  scheme  which 
shall  enable  him  to  settle  the  matter  with  mechanical  certainty. 
It  can  merely  indicate  the  general  points  of  view  from  which  the 
decision  is  to  be  rendered."     *     *     * 

"To  the  same  category  belong  the  conventional  half-truths 
and  untruths  of  social  intercourse.*  We  welcome  a  visitor  who 
comes  at  an  inopportune  time;  at  the  end  of  a  letter  we  assure 
a  man  whom  we  do  not  know,  or  whom  we  look  upon  as  a 
thorough  villain,  of  our  high  esteem.  The  necessity  and  justifica- 
tion for  this  lies  in  the  fact  that  smooth  and  peaceful  inter- 
course is  not  possible  among  men  as  they  are  constituted,  with- 
out the  exercise  of  some  constraint.  The  customary  politeness 
is  the  oil  which  prevents,  so  far  as  possible,  the  creaking  and 
pulling  of  the  machine.  The  angels  in  heaven  do  not  need  it. 
Where  there  are  no  inner  discords  and  outer  obstacles,  perfect 
openness  is  possible;  human  beings  as  they  are  constituted  can- 
not endure  it.  *  *  *  Of  course,  where  is  the  boundary 
between  necessary  politeness  and  repulsive  flattery  and  false- 
hood? No  system  of  morals  can  draw  the  line;  moral  tact 
alone  must  decide.  And  the  thing  is  not  without  its  dangers.  A 
person  who  lives  much  in  society  easily  forms  the  habit  of  lying, 
his  conscience  gradually  becomes  seared ;  it  becomes  second 
nature  and  finally  a  necessity  for  him  to  lie.  We  are  therfeore 
ready  to  suspect  a  man  who  exhibits  great  skill  in  the  art  of 
polite  speech.  We  are  more  apt  to  trust  one  who  is  somewhat 
awkward  and  backward  in  speaking  conventional  untruths." 

"Hence,  our  conclusion  would  be :  Be  truthful ;  this  holds 
unconditionally;  but  'speak  the  truth,'  does  not  hold  uncondi- 
tionally." 

"How  shall  we  account  for  this  strange  'rigorism'  of 
the  moralists,  which  is  everywhere  contradicted  by  life?  Are 
they  perhaps  influenced  by  the  curious  notion  that  the  'stricter' 
their  systems,  the  better  it  will  be  for  the  morality  of  mankind? 

*Page681. 


VERACITY.  129 

It  almost  seems  so.  If  our  moral  systems,  they  seem  to  think, 
leave  the  smallest  loophole  for  falsehood,  man's  inclination  to 
lie  will  gradually  enlarge  it,  and  he  will  always  find  an  excuse 
for  not  speaking  the  truth.  *  *  *  We  feel  the  need,  in  the 
face  of  our  constant  danger,  of  emphasizing  to  ourselves  and  to 
others,  often  in  the  strongest  terms,  the  value  of  truthfulness 
and  the  disgrace  of  lying  and  of  trifling  with  the  truth."     *     *     * 

"We  turn  now  to  the  positive  side  of  veracity.*  It 
corresponds  to  love  of  neighbor,  and  is  expressed  in  the  formula 
of  duty:  Serve  thy  neighbor  with  the  truth.  Since  the  conduct 
of  man  is,  to  a  considerable  extent,  dependent  upon  ideas,  true 
ideas  are  of  prime  importance  to  his  welfare.  The  universal 
duty  of  love  of  neighbor,  therefore,  includes  the  duty  to  assist 
one's  neighbor  in  ridding  himself  of  false  ideas  and  of  acquiring 
true  ones." 

"This  phase  of  the  question  has  been  too  much  neglected 
by  moralists,  a  fact  which  accounts  for  their  meager  treatment 
of  veracity  and  also  explains  their  inability  to  do  justice  to  the 
lie  of  necessity.  Whoever  lives  a  life  of  truth  in  the  main,  will 
have  no  trouble  in  settling  the  question  of  deception  whenever 
it  may  become  necessary  or  expedient.  But  the  person  whose 
truthfulness  consists  solely  in  refraining  from  telling  lies,  will 
be  afraid  of  totally  destroying  his  reputation  in  case  he  should 
ever  happen  to  say  what  is  not  true.  Such  purely  negative 
veracity  is,  of  course,  a  rather  paltry  thing;  it  easily  degenerates 
into  the  mere  art  of  avoiding  direct  falsehood.  Had  the 
disciples  of  Christ,  after  the  death  of  the  Master,  merely  refused 
to  deny  Him  directly,  had  they  returned  to  their  former  callings, 
and  obeying  the  commands  of  the  authorities  and  the  dictates  of 
prudence,  locked  up  the  memories  of  the  past  in  their  own 
hearts,  had  they  in  pursuance  of  the  maxim  that  it  is  not  our 
duty  to  say  everything  we  believe,  carefully  evaded  every  dis- 
cussion of  their  experiences,  they  certainly  would  have  escaped 
the  reproach  of  falsehood,  but  they  would  surely  never  have 
become  what  they  now  are :  witnesses  of  the  truth,  whose  testi- 
mony is  shaping  the  destiny  of  the  centuries." 

"Positive  veracity,  which  first  gives  to  negative  veracity  its 

*Paffe  685. 


130  SYSTEM  OF  ETHICS. 

real  meaning  and  value,  manifests  itself,  first,  in  the  personal 
intercourse  with  individuals,  where  it  assumes  the  form  of  advice, 
instruction,  admonition,  and  correction;  secondly,  in  the  public 
communication  of  the  truth,  where  it  takes  the  form  of  research, 
teaching,  and  preaching." 

"According  to  the  first  form,  it  is  my  duty  to  help  the 
individual  whom  I  find  in  search  of  the  right  path,  or  follow- 
ing the  wrong  path,  according  to  my  better  lights.  This  duty, 
too,  must  be  qualified.  Just  as  the  duty  of  love  of  neighbor 
cannot  mean  that  every  one  is  to  offer  his  aid  to  everybody  he 
meets,  the  duty  of  veracity  cannot  mean  that  we  are  at  all  times 
to  instruct  and  advise  people,  to  admonish  and  set  them 
right.  *  *  *  xhe  duty  to  instruct  and  set  right  pre- 
supposes two  things ;  first,  that  I  am  myeslf  sure  of  the  right 
path;  secondly,  that  the  interested  party  is  inclined  to  profit 
by  my  advice.  We  are  essentially  governed  by  these  considera- 
tions in  our  actual  practice.  I  see  a  stranger  in  the  mountains 
turning  into  a  road  that  leads  nowhere;  I  do  not  hesitate  to  call 
to  him  and  to  direct  him.  When,  on  the  other  hand,  I  find  a 
person  on  the  point  of  embarking  upon  a  mercantile  or  literary 
venture,  which  I  regard  as  sure  to  fail,  I  seriously  deliberate 
before  advising  him.  If  the  man  is  a  stranger  to  me  I  let  him 
alone.  I  do  not  know  enough  of  his  situation,  his  powers,  his 
resources,  to  know  what  he  can  do;  nor  can  I  assume  that  he 
has  confidence  enough  in  my  judgment  to  accept  my  advice: 
Perhaps  it  would  simply  confuse  him  or  anger  him."     *     *     * 

"The  ability  to  judge  where  and  when  it  is  proper  to  aid 
others  with  advice  and  instruction  may  be  called  'discretion.' 
The  opposite,  'indiscretion,'  the  inability  to  keep  from  advising 
and  instructing  people,  is  a  quality  that  will  make  a  person  dis- 
liked by  his  fellows  sooner  than  anything  else,  especially  when 
it  appears  in  young  men.  It  is  particularly  necessary  for  one 
to  be  on  one's  guard  when  it  comes  to  reprimanding  or  blaming 
people.  Uncalled-for  blame  angers  a  man  and  strengthens  him 
in  his  perverseness.  The  habit  of  finding  fault  and  speaking 
evil  is  a  real  vice.  Here  the  purpose  is  not  to  serve  the  neighbor 
with  the  truth,  but  to  flatter  one's  self-love  and  vanity.  The 
Gospel  does  not  warn  us  so  earnestly  against  fault-finding  for 


VERACITY.  131 

nothing.  Insinuating  itself  into  our  hearts  in  the  guise  of  sin- 
cerity and  love  of  truth,  this  habit  becomes  a  soul-destroying 
vice.  It  extinguishes  brotherly  love.  *  *  *  jt  prevents  us 
from  being  true  to  ourselves ;  the  man  who  is  always  beholding 
the  mote  that  is  in  his  brother's  eye,  at  last  cannot  see  the  beam 
that  is  in  his  own  eye.  Hence,  the  rule  is :  Speak  of  evil  only 
when  the  good  is  promoted  thereby;  and,  for  the  rest,  turn  all 
good  things  to  good." 

"The  other  phase  of  the  problem,  the  public  communi- 
cation of  the  truth,  demands  a  somewhat  more  elaborate  treat- 
ment. To  know  the  truth  as  a  whole,  as  contained  in  philosophy 
and  science,  is  not  a  function  of  the  individual  mind  as  such ;  a 
people,  or,  in  the  last  analysis,  humanity,  is  the  bearer  of  the 
truth,  the  individual  shares  in  it  as  the  member  of  a  people.  The 
little  fraction  which  he  possesses,  he  possesses  as  the  heir  of  the 
past;  he  thinks  with  the  logical  and  metaphysical  categories 
which  the  popular  mind  has  developed  in  the  course  of  thousands 
of  years,  and  has  incorporated  into  grammatical  forms.  He 
sees  things  through  the  ideas  and  notions  which  his  age  places  at 
his  disposal,  he  labors  upon  the  solution  of  problems  which  it 
suggests  to  him.  On  the  other  hand,  it  is  no  less  true  that  the 
collective  mind  exercises  the  functions  only  through  individual 
minds  as  its  organs." 

"Here  a  notable  difference  may  be  observed;  individuals  do 
not  stand  in  the  same  relation  to  this  function.  The  masses 
always  participate  in  the  truth  in  a  rather  receptive,  passive 
manner,  while  nature  chooses  only  a  few  distinguished  minds  as 
bearers  and  increasers  of  knowledge.  If  we  designate  the  latter 
with  the  old  term  of  clergy  (clerus),  which  includes  all  leaders 
of  the  people,  its  investigators  and  teachers,  its  thinkers  and 
poets,  we  may  say :  The  public  communication  of  the  truth  is 
the  true  life  calling  of  the  clerus,  and  veracity  is  the  specific 
duty,  as  it  were,  the  professional  virtue  of  the  clericus." 

"But  we  may  again  distinguish  two  phases  in  this  virtue : 
we  may  call  them  sincerity  and  the  love  of  truth.  The  former 
is  the  universal  and  elementary  virtue  of  the  clericus :  it  con- 
sists in  this,  that  he  simply  and  clearly,  conscientiously  and 
faithfully,  employs  the  truth  in  teaching  and  preaching,  in  theory 


132  SYSTEM  OF  ETHICS. 

and  in  practice.  It  is  the  fundamental  precondition  of  his  powei 
to  do  good  in  so  far  as  the  latter  depends  upon  the  confidence 
which  the  laymen  have  in  him.  But  confidence  is  gained  only 
by  simplicity  and  sincerity  of  heart  and  intellect.  Inquisitive 
love  of  truth,  on  the  other  hand,  is  the  special  duty  of  the  true 
investigator  and  pathfinder;  it  is  the  passionate  impulse  which 
incites  the  historical  or  natural-scientific  investigator  to  discover 
new  facts  and  to  penetrate  more  deeply  into  their  relations.  It 
is  the  impulse  which,  urging  the  thinker  constantly  to  test  the 
established  views  and  theories,  is  forever  on  its  guard  against 
error  even  in  the  form  of  established  opinions.  It  is  the  love 
of  truth  which  inspires  the  poet  and  thinker  who  seeks  to  com- 
prehend and  express  the  secret  meaning  of  life  and  the  universe 
in  new  thoughts  and  symbols.  It  is  the  love  of  truth,  finally, 
which  impels  the  great  leaders  of  mankind,  the  prophets  and 
reformers,  to  discover  new  untrodden  paths  of  life.  *  *  * 
They  are  restrained  by  no  authority,  by  no  prejudice,  be  it  ever 
so  sacred;  they  follow  the  light  which  burns  in  their  hearts." 

"The  love  of  truth  finds  its  highest  expression  in  martyr- 
dom. We  should  expect  the  nations  to  turn  to  their  great 
leaders  and  pathfinders  in  thankful  admiration.  And  so  they 
do,  but  it  is  only  after  their  death  that  mortal  men  are  reck- 
oned among  the  gods.*  Martyrdom  is  the  great  purifier  by 
which  humanity  tests  the  genuineness  of  new  truths ;  it  is 
the  narrow  portal  through  which  heroes  pass  into  immortality. 
This  has  been  the  method  of  humanity  from  times  immemo- 
rial, and  it  is  not  hard  to  see  the  historical  necessity  of  this 
fact,  which  is  so  surprising  at  first  sight." 

"Let  me  first  try  to  show  the  psychological  necessity. 

The  conceptions  and  truths  of  a  people  become — and 
that  is  their  true  function — the  basis  of  its  institutions,  of  the 
state  and  the  law,  of  the  church  and  the  school.  All  kinds 
of  arts  and  practices  depend  upon  our  views  and  ideas  of  the 
nature  of  things  and  of  men,  their  relations  to  each  other 
and  the  universe.  *  *  *  Hence,  it  follows  that  every 
attempt  at  a  radical  change  in  views  is  regarded  as  a  menace 

*Page  690. 


VERACITY.  133 

to  the  entire  life ;  the  weakening  of  the  theoretical  founda- 
tions will  result  in  the  shattering  of  all  the  institutions 
founded  upon  them.  And  this  is  not  an  illusion.  All  great 
revolutions  in  the  world  of  institutions  had  as  their  starting 
point  revolutions  in  the  world  of  thoughts.  *  *  *  The 
long  series  of  revolutions  which  fill  the  pages  of  modern  his- 
tory are  the  after-effects  of  the  changes  in  the  world  of  ideas 
which,  after  the  fifteenth  century,  undermined  the  medieval 
conception  of  the  universe  which  had  been  systematized  in 
the  dogmas  of  the  church.  The  great  historical  and  geograph- 
ical, cosmical  and  physical  discoveries,  which  were  made  in 
surprising  numbers  in  the  neighborhood  of  the  sixteenth  cen- 
tury, first  made  possible  the  ecclesiastical  revolutions,  then 
the  economical  and  political  revolutions,  which  since  then 
have  shaken  Germany,  England,  and  France,  and  which  have 
not  yet  come  to  an  end.  Wherever,  however,  the  wor.ld  of 
thought  remains  stable,  as  was  the  case  in  China,  the  world 
of  institutions  persists  in  its  old  forms." 

It  is  natural,  therefore,  since  the  welfare  of  a  people 
depends  upon  the  stability  and  trustworthiness  of  its  insti- 
tutions, that  the  church,  the  state,  and  society  in  general, 
should  resist  and  persecute  the  promulgation  of  any  new 
truths  that  threaten  to  undermine  the  authority  or  change  the 
organization  or  the  activities  of  the  church,  the  government, 
or  of  society.  It  usually  happens,  therefore,  that  those  who 
promulgate  revolutionary  ideas  meet  with  persecutions  in 
varying  forms,  and  sometimes  martyrdom.  It  is  usual  for  all 
sorts  of  agitators  and  would-be  innovators,  when  repudiated  by 
their  contemporaries,  to  appeal  to  posterity,  but  the  appeal  is 
not  always  sustained.  A  great  proportion  of  those  who  pro- 
claim doctrines  or  ideas  which  they  think  will  overturn  or 
transform  existing  institutions  or  customs  are  correctly  judged 
by  their  contemporaries,  who  repudiate  them,  and  posterity, 
instead  of  adopting  their  ideas,  will  forget  them  altogether.  It 
is  right  that  society  should  resist  changes  in  institutions  and 
customs,  and  the  beliefs  upon  which  they  are  founded  until 
the  truth  of  new  ideas  is  well  established  and  until  the  changes 
in  institutions  or  usages  founded  upon  them  may  be  fairly 


134  SYSTEM  OF  ETHICS. 

expected  to  promote  the  welfare  of  mankind  better  than  those 
which  they  replace. 

"Thus,  the  attitude  of  mankind  to  new  truths  is  psy- 
chologically necessary.*     But  it  is  also  teleologically." 

"Historical  life  is  evidently  not  possible  without  fixed 
and  permanent  institutions ;  they  are  the  means  by  which  col- 
lective reason  determines  and  governs  the  life  of  the  indi- 
vidual. The  many,  we  might  say,  somewhat  modifying  a 
remark  of  Heraclitus,  although  they  beHeve  they  are  living 
according  to  their  own  insight,  are  in  reality  governed  by  the 
common  reason.  *  *  *  Permanent  conceptions  are  the 
preconditions  of  permanent  institutions.  Hence,  in  order  that 
historical  life  may  be  possible,  it  is  necessary  that  the  thoughts 
become  fixed  and  take  firm  root  in  the  minds  of  men,  and 
offer  resistance  to  new  thoughts  which  seek  to  push  them  oiit. 
Perhaps  they  cannot  be  established  firmly  enough,  at  first, 
without  a  transcendent  sanction.  This  would  explain  the 
teleological  necessity  of  a  religious  metaphysic,  which  we 
actually  find  everywhere,  as  the  original  foundation  of  the 
faith  and  life  of  a  people,  of  its  morals  and  laws,  and  which 
usually  ofifers  such  great  resistance  to  the  introduction  of  new 
truths.  Nay,  we  can  manifestly  form  no  conception  whatever 
of  a  mental  historical  life  in  which  we  should  not  have  to 
battle  for  the  truth  against  error  and  prejudice;  of  what 
would  it  consist?  Without  friction,  no  motion.  *  *  * 
Owing  to  this  beneficent  arrangement,  the  spiritual  leadership 
of  humanity  is  finally  reserved  for  men  of  great,  earnest,  and 
unselfish  hearts."     *     *     * 

"I  shall  close  this  entire  discussion  with  a  considera- 
tion of  the  question :  Does  the  duty  of  communicating  truth 
universally  demand  the  destruction  of  error  wherever  and 
in  whatever  form  it  may  appear?  It  is  one  of  the  great  con- 
troversies which  have  always  moved  mankind.  We  may 
define  it  as  the  controversy  between  the  will  and  the  intellect, 
between  the  practical  and  speculative  sides  of  human  nature. 
The  will,  turned  towards  self-preservation,  demands,  as  was 
shown  above,  stability  of  institutions,  and  therefore  also  of 

♦Page  695. 


VERACITY.  135 

the  conceptions  upon  which  they  are  grounded.  The  spiritual 
and  temporal  authorities,  which  we  may  term  the  representa- 
tives of  the  will  in  history,  therefore  always  incline  to  demand 
that  certain  things  be  fixed  once  and  for  all,  which  criticism 
should  not  be  permitted  to  disturb.  The  intellect,  on  the 
contrary,  refuses  to  close  the  debate ;  to  hinder  the  continua- 
tion of  the  investigation  means  for  it  the  perpetuation  of 
error.  The  end  of  all  research  is  the  absolute  accommodation 
of  knowledge  to  reality.  But  this  goal  is  infinitely  remote, 
and  hence  the  attempt  better  to  adapt  the  conceptual  system 
to  reality  must  be  constantly  renewed.  Nor  are  the  funda- 
mental principles  excepted;  they,  too,  must  be  subjected  to 
progressive  changes,  if  only  for  the  reason  that  the  constant 
extension  and  intensification  of  particular  knowledge  ulti- 
mately demands  a  rearrangement  of  the  facts." 

"The  antagonism  between  these  two  tendencies,  formu- 
lated as  a  conflict  of  principles,  turns  upon  the  question :  Is 
truth  under  all  circumstances  good  and  error  harmful?  Or 
may  the  preservation  of  error  at  times  be  necessary,  and  its 
destruction  harmful?  The  politicians,  if  we  may  designate 
the  representatives  of  the  will  by  this  term,  affirm  the  latter; 
the  philosophers,  the  representatives  of  the  intellect,  the 
former  question." 

"If  the  question  is  asked  absolutely  and  universally,  it 
will  be  impossible  to  answer  it  otherwise  than  with  the 
philosophers:  Truth  is  good;  error  harmful.  Since  things 
do  not  govern  themselves  according  to  our  opinions,  we  must 
govern  our  opinions  according  to  things.  Things,  says  Bishop 
Buller,  are  what  they  are,  and  their  effects  will  be  what  they 
are;  why  should  we  wish  to  deceive  ourselves?"    *    *    * 

"On  the  other  hand,  it  seems  to  be  impossible  to  deny 
that  the  destruction  of  an  erroneous  idea  does  not,  under  all 
circumstances,  promote  the  welfare  of  him  who  harbors  it. 
Hence  an  inadequate  idea  may  be  better  than  none  at  all ; 
and  the  conditions  may  be  such  as  to  make  it  possible  to 
undermine  the  false  conception  without  establishing  the  true 
one."     *     *     * 

This  indicates  the  key  to  the  situation,  the  attempt  to 


136  SYSTEM  OF  ETHICS. 

remove  erroneous  conceptions  or  beliefs  should  be  conditioned 
upon  the  likelihood  of  being  able  to  substitute  truer  concep- 
tions or  beliefs,  that  will  prove  a  better  guide  for  life  and 
conduct. 

"From  this  point  of  view  the  controversy  between  the 
politicians  and  the  philosophers,  it  seems  to  me,  may  be 
settled." 

"The  philosophers  are  right  in  this :  No  limits  are  to 
be  set  to  research.  Whatever  new  thoughts  (that  are  true) 
a  nation  produces,  will  be  suitable  and  good  for  it.  *  *  * 
The  investigator,  as  such,  can  therefore  be  concerned  with 
no  other  question  than  this:  What  is  true?  *  *  *  The 
scientific  writer  has  but  one  concern :  *How  shall  I  most 
clearly  and  definitely  present  the  things  as  I  see  them?  Who- 
ever allows  himself  to  be  governed  by  considerations  and 
purposes  of  a  different  kind,  whoever  is  thinking,  first  and 
last,  how  he  may  please  this  man  and  avoid  displeasing  that 
one,  does  not  serve  the  truth,  and  therefore  the  truth  also 
despises  him.  Truth  gives  herself  only  to  him  who  seeks 
for  her  alone."     *     *     * 

"So  far  the  philosophers  are  right.  The  politicians,  on 
the  other  hand,  are  right  in  this,  that  when  it  comes  to 
imparting  knowledge  by  instruction,  which  is  designed  for 
particular  persons,  we  must  be  guided  not  only  by  a  regard 
for  the  subject  but  by  a  regard  for  the  person.  This  con- 
sideration may  prevent  the  teacher  from  saying  everything 
he  thinks,  and  from  saying  what  he  thinks  just  as  he  thinks 
it  in  his  own  mind.  We  do  not  tell  the  simplest  experience 
to  two  different  persons  in  the  same  way ;  we  take  into 
account  the  person,  and  govern  our  narrative  and  voice,  the 
selection  and  arrangement  of  the  facts,  accordingly.  How 
could  we  speak  of  greater  things,  how  could  we  speak  of  God 
and  the  world,  to  persons  of  different  age,  education,  inclina- 
tions, and  views  in  the  same  words?  It  is  the  same  history 
of  mankind  which  is  taught  in  the  grade  school,  in  the  high 
school  and  the  university ;  and  yet  how  different  must  be  the 

*PaRe  702. 


VERACITY.  137 

method  of  treatment  in  order  that  it  may  be  good,  instructive 
and  edifying  in  each  place.  The  same  also  applies  to  ulti- 
mate principles.  The  world  is  one  and  the  same,  and  so  is 
the  truth ;  but  it  cannot  reflect  the  same  countenance  in  every 
mirror." 


PART    SECOND. 

PROFESSIONAL  ETHICS. 

CHAPTER  X. 

ETHICS    OF    BUSINESS,    OF    EMPLOYMENT,    OF    PROFESSIONS. 

All  men,  whether  they  will  or  no,  and  whether  they  ac- 
knowledge it  or  not,  are  as  surely  under  dominion  of  moral 
laws  as  of  physical  laws  and  the  consequences  resulting  from 
obedience  or  disobedience  are  as  sure  to  follow  in  the  one 
case  as  in  the  other.  No  human  being,  therefore,  who  has 
intelligence  enough  to  be  responsible  for  his  acts  is  free  from 
the  obligation  to  be  good  and  to  do  right.  It  is  the  province 
of  ethics  to  discover  the  principles  upon  which  a  good  char- 
acter may  be  formed,  and  to  describe  the  rules  and  methods 
by  which  right  conduct  may  be  guided.  The  preceding  chap- 
ters have  attempted  to  do  this,  in  a  brief  and  imperfect  way. 
It  remains  now  to  apply  these  principles  and  rules  to  the 
special  circumstances,  relations  and  obligations  of  profes- 
sional life,  and  to  discover  and  describe,  if  we  can,  how  these 
may  differ  from  the  duties  and  obligations  resting  upon  men 
in  other  walks  of  life.  It  ought  to  be  recognized  as  a  rule  of 
ethics,  or  morality  that  every  man  and  woman  having  suf- 
ficient health  and  mental  capacity,  should  be  engaged  in  some 
employment  or  service  useful  to  society;  and  in  choosing  a 
profession  or  business  or  trade  which  one  expects  to  follow 
for  a  livelihood,  the  question  is  fundamental  whether  those 
persons  who  are  served  or  influenced  will  be  benefited  by  it 
or  harmed  by  it.  Probably  most  people  choose  their  employ- 
ment with  little  thought  of  anything  except  the  prospect  of 
gaining  a  livelihood  by  it,  and  whether  it  will  be  suitable  to 
their  abilities  and  congenial  to  their  tastes;  and  fortunately, 
most  of  the  employments  that  are  open  to  the  choice  of 
young  people  are  more  or  less  useful  as  well  as  remunerative. 
Such  employments  as  are  injurious  or  useless  ought  not  to 
be  thought  respectable. 

The  duty  to  follow  some  useful  calling  is  no  respecter 


ETHICS  OF  PROFESSIONS.  139 

of  persons,  but  rests  upon  the  rich  and  the  poor,  the  high  and 
the  lowly,  the  learned  and  the  unlearned,  the  wise  and  the 
foolish,  the  strong  and  the  weak,  upon  men  and  women.  There 
should  be  no  exceptions  except  for  disability. 

The  most  important  ethical  requirement  in  every  busi- 
ness transaction  is  that  all  the  parties  to  it  are  benefited  by  it. 
Any  business,  like  gambling  and  perhaps  some  forms  of  spec- 
ulation, that  does  not  admit  of  benefit  to  both  parties  in  the 
transaction,  is  not  a  legitimate  business  and  the  following 
of  It  cannot  be  defended  on  grounds  of  morality. 

In  ordinary  transactions  of  buying  and  selling  the  parties 
are  usually  supposed  to  meet  on  equal  terms,  each  able  to 
look  out  for  his  own  interest.  It  is  required  of  the  seller  to 
tell  the  truth  about  what  he  sells  and  the  best  standards  of 
business  morality  as  well  as  the  best  business  policy  lead  the 
seller  to  interest  himself  in  his  customer's  point  of  view, 
the  use  he  can  make  of  his  purchase,  whether  this  article  or 
some  other  will  best  serve  his  needs,  and  other  matters  that 
make  him  satisfied  with  his  purchase  and  so  become  a  con- 
tinuing customer.  In  the  relations  of  employer  and  workmen 
or  the  merchant  and  his  clerks,  the  human  element  comes 
in  with  more  importance  than  with  the  seller  and  buyer, 
and  the  employer  has  far  greater  responsibility  for  the 
welfare  of  his  employes.  His  duty  is  not  cjccomplished 
by  paying  them  so  much  money  for  so  much  work,  but  he 
should  provide  them  a  safe  place  to  work,  in  pure  air  and 
wholesome  circumstances,  with  necessary  conveniences  for 
personal  comfort  and  cleanliness,  and  should  take  an  interest 
in  their  health,  pleasure  and  general  welfare.  Not  all  em- 
ployers do  these  things,  in  fact  so  many  neglect  them  that 
it  has  been  found  necessary  to  enact  laws  making  specific 
requirements  for  many  of  them.  It  has  been  slowly  pene- 
trating into  the  minds  of  men  that  the  physical  health  and 
moral  welfare  of  men  and  women  are  more  important  than 
the  profits  of  business.  However,  in  business  and  manu- 
facturing, the  health  and  welfare  of  employes  is  not  the  first 
or  primary  consideration;  the  object  of  the  shoe  manufac- 
turer, for  instance,  is  to  make  shoes,  and  if  he  did  not  desire 


140  PROFESSIONAL  ETHICS. 

to  make  shoes  he  would  not  hire  any  men  at  all,  nor  assume 
any  interest  or  responsibility  for  their  health  and  welfare; 
he  does  not  make  shoes  in  order  that  he  may  provide  for  the 
welfare  of  the  people  he  employs,  but  he  employs  them  and 
takes  good  care  of  them  in  order  that  he  may  make  shoes. 
Generally,  in  all  business  or  manufacturing  or  agriculture, 
the  matters  of  importance  and  chief  consideration  are  the 
things  produced  or  manufactured,  or  bought  and  sold.  It  is 
true  that  those  engaged  in  all  these  pursuits  may,  and  should, 
make  their  employments  and  business  relations  minister  to 
the  higher  levels  of  life  in  moral  and  spiritual  development 
and  expression,  and  these  are  the  best  and  most  important 
fruits  of  living,  to  be  won  individually  in  whatever  circum- 
stance or  conditions  in  life  men  find  themselves.  So  far  as 
business  itself  is  concerned  the  commodities  produced  and 
distributed  are  the  things  of  primary  importance. 

In  such  professions  as  medicine  and  dentistry  the  human 
element  comes  to  the  front  and  becomes  of  primary  and  chief 
importance.  The  practice  of  medicine  and  dentistry  consists 
in  personal  services  to  supply  personal  needs,  and  the  mat- 
ter of  making  something  and  selling  something  takes  a  sub- 
ordinate and  comparatively  insignificant  place.  It  is  true 
there  is  a  business  side  to  dentistry  and  medicine  and  there 
is  a  bargain  and  sale  of  professional  services,  but  the  differ- 
ence between  selling  professional  services  and  selling  com- 
modities, or  even  one's  time  in  some  mechanical  or  routine 
employment  is  so  great  that  different  terms  are  used  to 
describe  them.  We  sell  commodities,  or  time  in  ordinary 
employments,  for  a  price.  We  perform  a  professional  service 
for  a  fee.  When  you  make  a  gold  filling,  or  make  a  crown 
or  bridge  you  charge  a  fee  for  your  services,  you  do  not  sell 
the  crown  or  bridge  for  a  price. 

The  interests  intrusted  to  practitioners  of  medicine  and 
dentistry  are  of  the  utmost  importance,  involving  personal 
symmetry  and  beauty,  comfort  and  health,  not  infrequently 
life  itself.  It  is  not  surprising  therefore  that  the  community 
should  expect,  and  the  professions  should  seek  to  maintain 
in  their  ranks,  a  higher  standard  of  fitness  and  training,  a 


ETHICS  OF  PROFESSIONS.  141 

better  education,  greater  general  intelligence,  and  above  all, 
a  higher  standard  of  moral  excellence  and  more  scrupulous 
conscientiousness  than  is  expected  or  exacted  from  other  classes. 

The  relation  of  a  dentist  and  his  patient  is  not  that  of  a 
seller  and  buyer,  nor  that  of  employer  and  employe.  It  is  a 
trust,  confided  to  the  dentist  by  his  patient,  who  entrusts  his 
future  comfort,  beauty,  health,  not  infrequently  the  prolonga- 
ion  of  life  itself,  to  the  knowledge,  skill,  good  judgment,  sin- 
cerity, honesty  and  disinterestedness  of  the  dentist.  The 
patient  does  not  come  as  a  buyer  seeking  to  purchase  some- 
thing the  dentist  has  to  sell,  so  much  money  for  a  set  of 
teeth  or  a  gold  crown  or  filling;  nor  as  an  employer  seeking 
to  hire  a  man  to  do  a  job  of  work;  so  much  money  for  clean- 
ing teeth,  (prophylactic  operation)  treating  an  abscess,  or 
removing  a  pulp  and  filling  a  root.  The  patient  expects  to 
receive,  and  the  dentist  should  insist  upon  giving,  something 
more  than  the  mere  technical  skill  and  craftsmanship  that 
enables  him  to  do  the  work.  Professional  knowledge  and 
skill  implies  more  than  technical  knowledge  and  skill.  It 
means  the  ability  to  understand  present  conditions,  past  his- 
tory and  future  probabilities  or  results,  and  such  knowledge, 
experience  and  judgment  as  enable  a  man  to  advise  and  fre- 
quently to  dictate  what  should  be  done ;  and  this  is  a  very 
different  matter  from  the  mere  technical  skill  to  do  it.  This 
is  what  makes  the  dentist's  work  a  professional  service  instead 
of  mechanical  or  artistic  work,  and  this  is  what  makes  it 
worthy  a  professional  fee  instead  of  wages  for  work  or  a 
price  for  something  made. 

A  price  is  supposed  to  bear  some  pretty  definite  relation 
to  the  cost  of  purchase  or  manufacture,  with  the  added  expense 
of  carrying  it  in  stock  and  making  the  sale,  and  some  suitable 
percentage  of  profit  added ;  and  wages  or  salary  have  a  similar 
rather  definite  relation  to  time  consumed  and  the  knowledge, 
experience  and  ability  of  the  person  employed.  There  is  much 
greater  fiexibility  about  fees,  and  several  additional  elements 
come  into  the  determination  of  them.  The  primary  basis  for 
a  fee  is  the  same  as  for  a  price  or  wages,  namely  the  cost  of 
production,  the  time  consumed  and  the  knowledge,  skill  and 


142  PROFESSIONAL   ETHICS. 

judgment  required  for  the  service,  but  a  fee  can  be  influenced 
to  a  much  greater  extent  by  the  art,  the  knowledge  and  skill, 
but  especially  by  the  judgment  and  wisdom,  and  reputation 
for  success,  than  can  a  wage  or  a  price,  and  more  important 
still  in  determining  a  fee  is  the  importance  of  the  service,  the 
risks  attending  it,  the  amount  of  benefit  that  may  follow 
from  success  and  the  extent  of  injury  that  may  result  from 
failure.  Added  to  all  this  is  the  ability  or  inability  of  the 
recipient  to  pay  for  the  service.  These  considerations  serve 
to  make  professional  fees  exceedingly  variable,  both  as  regards 
the  men  who  receive  them  and  the  people  who  pay  them. 

In  the  case  of  a  lawyer,  the  amount  of  pecuniary  interests 
at  stake  has  more  to  do  with  the  amount  of  his  fees  than  any 
other  one  thing.  It  is  conceivable  that  a  lawyer  might  at 
different  times  have  two  cases  involving  similar  points  of 
law  and  procedure  and  taking  similar  amounts  of  time,  in 
one  of  which  one  hundred  dollars  was  at  stake  and  in  the 
other  half  a  million  dollars,  and  he  might  receive  twenty-five 
dollars  for  one  case  and  a  thousand  dollars  or  more  for  the 
other.  No  salaried  man  or  wage  earner  could  ever  hope  to 
get  such  different  amounts  for  similar  services.  These  con- 
siderations will  indicate  the  objections  against  charging  for 
professional  services  by  the  hour.  A  good  many  dentists 
have  not  got  away  very  much  from  the  mechanic's  point  of 
view,  and  profess  to  charge  their  patients  in  strict  relation 
to  the  time  spent.  Many  years  ago  a  well-known  man,  in  a 
paper  before  the  American  Dental  Association  or  in  one  of 
the  principal  dental  journals,  said  that  for  operations  of  filling 
teeth  he  charged  three  dollars  an  hour  for  the  time  spent  in 
preparing  the  cavities  and  finishing  the  work  and  seven  dol- 
lars an  hour  for  the  time  spent  in  introducing  the  gold,  the 
inference  being  that  the  additional  charge  would  pay  for  the 
gold  he  was  using. 

Another  man  told  how  he  had  an  hour-glass  which  he 
set  going  on  his  operating  table  when  he  seated  his  patient 
in  the  chair  and  turned  down  upon  its  side  if  he  were  inter- 
rupted during  the  sitting  by  the  need  to  see  other  patients 
or  attend  to  other  matters.    In  this  way  his  patients  were  able 


ETHICS  OF  PROFESSIONS.  143 

to  see  that  he  did  not  charge  them  for  anytime  he  did  not 
give  them.  In  dentistry,  time  is  the  most  important  of  the 
circumstances  which  determine  the  fee,  but  it  should  never 
be  allowed  to  constitute  the  only  thing  that  determines  it. 
In  the  practice  of  medicine  and  surgery,  time  has  a  much 
smaller  influence  in  determining  fees.  A  doctor  in  a  place 
where  the  standard  fee  for  a  house  visit  is  two  dollars,  charges 
that  amount  whether  he  is  in  the  house  five  minutes  or  a 
whole  hour,  and  a  surgeon  whose  fee  for  removing  an  appen- 
dix is  three  hundred  dollars  and  it  usually  takes  half  an  hour, 
does  not  charge  six  hundred  dollars  if  it  happens  to  take  an 
hour. 

The  difference  between  a  fee  and  wages  or  price  is  not 
merely  arbitrary,  a  means  by  which  certain  classes  of  men 
seek  to  make  a  distinction  where  there  is  no  difference,  but 
the  word  fee  is  applied  to  a  different  kind  of  service,  and 
implies  different  standards  of  estimation  or  determination. 


CHAPTER  XL 

PROFESSIONAL    ADVERTISING — WINNING    A     PRACTICE — DUTIES     TO 

PATIENTS. 

The  attitude  of  the  dental,  medical  and  legal  professions 
toward  advertising  is  based  upon  the  differences  I  have  been 
trying  to  explain  between  professional  services  and  business, 
manufacturing  and  agricultural   employments. 

A  man  may  advertise  things,  commodities,  with  the 
utmost  freedom  if  he  does  not  misrepresent  them,  but  there 
is  almost  universal  opinion  in  the  professions  of  dentistry, 
medicine,  law,  and  some  others,  that  the  public,  paid  adver- 
tisement of  personal  qualifications  or  character,  professional 
ability,  fees  for  services,  etc.,  etc.,  is  improper,  in  bad  taste, 
and  not  consistent  with  personal  self-respect  or  professional 
dignity.  A  man  may  advertise  his  professional  occupation 
and  the  location  of  his  office,  but  can  scarcely  go  beyond  that. 
There  are  some  men  in  both  the  dental  and  medical  profes- 
sions who  are  impatient  under  these  restrictions  and  fail  to 
comprehend  the  reasonableness  and  necessity  of  them,  be- 
cause they  have  no  clear  idea  of  the  difference  between  the 
professions  and  commercial  or  manufacturing  pursuits. 

So  deeply  rooted  and  universal  among  professional  men 
is  the  conviction  that  public  advertising  of  the  commercial 
sort  is  inconsistent  with  professional  self-respect  that  nothing 
else  will  so  quickly  and  certainly  cause  a  man  to  be  ostracised 
by  his  professional  associates  and  cut  off  from  all  professional 
societies.  Moreover,  the  advertisements  themselves  are  so 
commonly  untruthful  or  misleading  and  the  practice  they 
represent  so  often  incompetent  and  unscruplous  that  adver- 
tising has  come  to  be  looked  upon  as  the  badge  of  quackery 
by  the  community  as  well  as  by  the  profession,  and  the  man 
who  descends  to  it  must  expect  to  find  the  better  classes  of 
people  shunning  him.  That  is  to  say,  such  advertising  is 
quite  as  sure  to  repel  the  most  desirable  patients  as  it  is  to 
attract  a  less  desirable  class  of  people. 


PROFESSIONAL  ADVERTISING.  145 

It  is  important  that  you  understand  the  distinctions  and 
differences  I  have  tried  to  make  clear,  and  that  you  pass  over 
from  the  attitude  and  standpoint  of  workmen,  technicians,  or 
even  artists,  to  that  of  professional  men,  and  take  upon  your- 
selves the  additional  responsibilities  and  duties  of  profes- 
sional men,  associate  yourselves  with  professional  men  in 
places  where  you  live  and  practice,  and  make  your  patients 
respect  you  and  treat  you  as  professional  men  and  not  merely 
as  workmen  whom  they  can  hire  to  do  a  job.  The  importance 
of  these  discriminations  and  of  cultivating  the  professional 
instead  of  the  commercial  spirit  is  greater  than  you  can  at 
present  fully  realize. 

The  conventional  rules  in  regard  to  signs  and  announce- 
ments are  matters  of  etiquette  rather  than  ethics.  "In  New 
York  it  would  be  deemed  unbecoming  to  insert  card  with 
residence  and  office  hours ;  or  notice  of  removal  in  a  medical 
journal,  much  more  in  a  newspaper,  etc.,  but  in  some  other 
cities  such  notices  are  not  considered  improper." 

■'In  Paris  a  professional  doorplate  is  a  deviation  from 
propriety.  In  New  York  a  modest  doorplate  or  sign  is  the 
rule." 

The  above  conventions  or  fashions  apply  primarily  to 
physicians,  but  most  dentists  conform  to  them  with  equal 
strictness. 

In  some  of  the  smaller  towns  it  is  not  uncommon  for  the 
professional  men;  lawyers,  physicians  and  dentists,  to  keep 
their  professional  cards  standing  in  the  local  newspaper.  This 
may  often  be  done  more  with  a  view  to  give  loyal  support  to 
the  town  paper  than  for  any  benefit  that  may  be  expected 
from  the  advertisement. 

In  view  of  the  restrictions  which  the  codes  of  ethics 
impose  upon  advertising,  I  am  sure  the  question  often  arises 
in  the  minds  of  young  men  how  they  may  make  their  pro- 
fessional ability  known  to  a  sufficient  number  of  people  to 
win  a  living  practice.  It  must  be  said  that  it  is  likely  to  take 
time.  A  practice,  like  many  other  things,  is  not  born  full 
grown,  but  must  have  time  in  which  to  develop.  There  are 
many  influences  that  may  help  that  are  perfectly  proper  and 


146  PROFESSIONAL  ETHICS. 

allowable  by  the  code  of  ethics,  and  consistent  with  profes- 
sional and  gentlemanly  conduct.  First  in  importance  is  the 
skill  and  wisdom  with  which  the  few  patients  that  may  come 
are  treated.  Second  in  importance,  though  usually  first  in 
immediate  results,  is  the  favorable  impression  made  by  the 
personality  of  the  young  man,  both  upon  his  patients  and 
all  those  whom  he  meets  in  any  of  the  circumstances  and 
relations  of  life.  It  is  contemptible  to  "work  for  business" 
a  man's  church,  or  lodge,  or  club,  and  a  man  who  does  so  is 
pretty  likely  to  be  recognized  and  meet  the  contempt  he 
deserves.  A  man  should  join  a  church  or  lodge  or  club  for 
the  sake  of  promoting  the  ends  for  which  such  organizations 
are  maintained.  If  he  does  that  the  acquaintances  and  friend- 
ships so  acquired  will  inevitably  react  favorably  upon  his 
business  and  it  is  perfectly  right  that  business  should  be 
benefited  in  that  way.  As  a  practical  fact,  most  young  men 
of  good  professional  ability  and  attractive  personality  do  find 
these  two  sets  of  influences  sufficient  to  develop  their  practice 
as  fast  as  is  good  for  them.  If  a  good  opportunity  can  be 
found,  a  good  way  of  beginning  practice  is  to  go  into  the 
office  of  some  established  practitioner  as  his  assistant.  It 
will  give  the  opportunity  to  get  those  first  few  patients  that 
are  to  act  as  drummers  (if  we  may  use  such  a  term)  for  his 
future  practice;  but  it  gives  opportunity  to  observe  and  absorb 
very  much  that  will  be  to  his  advantage,  about  the  arrange- 
ment and  conduct  of  an  office,  the  management  of  patients, 
the  keeping  of  records  and  accounts  and  collection  of  bills, 
and  numberless  other  things  which  help  to  make  a  practice 
efficient,  successful  and  easy,  and  of  which  little  can  possibly 
be  learned  in  a  dental  school.  The  custom  of  a  pupilage 
before  entering  the  dental  school  is  obsolete,  but  the  desir- 
ability of  spending  some  time  in  close  contact  with  some  wise 
and  experienced  man  is  as  great  as  ever  it  was,  and  after 
graduation  is  a  much  better  time  to  do  it  than  before  entering 
dental  school. 

Much  help  in  winning  a  practice  may  come  from  having 
the  office  well  located,  thoroughly  equipped  for  the  best  serv- 
ices and  for  all  probable  emergencies,  conveniently  arranged 


WINNING  A  PRACTICE.  147 

for  doing  work  without  loss  of  time,  in  good  taste  and  attrac- 
tive in  appearance,  above  all  things  scrupulously  clean.  There 
should  be  arrangements  for  the  comfort  and  convenience  of 
patients,  and  they  should  be  seated  in  the  operating  chair  so 
as  to  be  comfortable,  and  to  permit  physical  and  nervous 
or  mental   relaxation   instead   of  tension. 

The  primary  object  in  the  practice  of  dentistry,  that  for 
which  the  profession  of  dentistry  exists,  is  the  welfare  of  the 
patients  committed  to  our  care.  This  is  paramount  and  if 
other  duties  and  obligations  conflict  with  this  one  they  should 
yield  to  a  greater  extent  than  this  one.  A  different  object 
of  practice  has  been  proposed  by  some  and  pursued  by  many, 
namely :  "Get  the  money" ;  and  a  very  well  known  man  in  a 
paper  before  a  great  dental  society  characterized  the  ethical 
attitude  which  makes  the  duty  to  patients  paramount  over 
selfish  considerations  as  "bunk."  Of  course,  it  is  necessary 
for  the  dentist  to  get  money  for  his  services  and  unless  he  gets 
enough  of  it  to  provide  comfortably  for  himself  and  his  fam- 
ily, and  keep  his  office  in  first  class  condition,  and  meet  the 
social  and  public  expenses  that  necessarily  fall  to  his  share, 
he  cannot  give  his  patients  the  best  possible  service  as  he 
ought.  A  man's  interests  and  those  of  his  patients  are  not 
antagonistic  but  mutual.  What  is  good  for  one  is  good  for 
both.  It  is  a  question  of  relation  and  comparison.  As  soon 
as  a  man's  skill  and  success  make  him  independent  enough  to 
do  so  he  should  establish  a  standard  of  fees  high  enough  to 
allow  him  to  serve  some  of  his  patients,  who  are  needy,  for 
fees  much  less  than  his  standard.  When  a  patient  is  examined 
and  the  service  needed  is  planned  and  arranged  for,  the  atti- 
tude of  the  dentist  should  not  be  to  obtain  the  patient's  con- 
sent to  the  plan  by  which  he  can  get  the  most  money  for  the 
easiest  service,  but  it  should  be  "how  can  I  render  the  best 
services  to  this  patient  that  he  can  afford,  or,  if  well  to  do, 
can  be  induced  to  pay  for,  and  I  can  afford  to  render."  That 
is  what  I  mean  by  putting  the  welfare  of  the  patient  first 
and  the  interest  of  the  dentist  second. 

Patients  will  often  require  instruction,  advice  and  per- 
suasion as  to  the  treatment  Ihev  need,  sometimes  several  al- 


148  PROFESSIONAL  ETHICS. 

ternative  methods  of  treatment  will  present  themselves  to 
your  mind  as  practicable,  and  it  may  require  full  consulta- 
tion with  the  patient  in  addition  to  your  own  study  of  the 
mouth  before  determining  on  the  wisest  course  to  be  pur- 
sued, for  although  you  ought  to  be  a  far  better  judge  than 
the  patient  as  to  the  conditions  present,  the  future  prospects 
and  the  most  desirable  plan  to  pursue,  the  information  the 
patient  may  give  as  to  financial  ability,  the  command  of  time 
and  opportunity,  and  the  past  history  of  particular  teeth  or 
of  the  mouth  generally,  may  prove  of  indispensable  assistance 
in  determining  what  is  practicable  and  can  be  wisely  under- 
taken. 

Professional,  and  still  more,  financial  success  depend  almost 
as  much  upon  a  man's  manners  and  bearing  and  conversation 
with  his  patients,  as  upon  his  knowledge  and  skill.  This  works 
more  or  less  injustice  sometimes  to  those  who  have  given  their 
best  efforts  to  perfecting  themselves  in  their  profession  and 
have  neglected  to  cultivate  the  pleasing  manners  and  facility  of 
intelligent  conversation,  the  tact  and  quick  apprehension  of  fitness 
and  appropriateness  to  time  and  circumstances,  which  are  the 
current  coin  of  society.  It  is  not  surprising  that  a  man's  per- 
sonality should  make  a  stronger  impression  upon  his  patient  than 
his  professional  skill,  for  people  are  usually  good  judges  of 
personal  appearance,  manners  and  conversation,  and  very  poor 
judges  of  the  quality  of  professional  services. 

Almost  all  patients  and  especially  all  children  should  be 
carefully  instructed  in  the  care  they  ought  to  take  of  their  teeth 
and  mouths.  Such  directions  should  be  plain  and  specific,  and 
care  should  be  taken  to  require  nothing  that  should  be  imprac- 
ticable for  them  in  the  special  circumstances  in  whihc  they  live. 
It  is  usually  necessary  to  show  them  how  to  handle  the  tooth 
brush  and  floss  silk,  and  they  should  be  told  what  tooth  powders, 
pastes  and  mouth  washes,  etc.,  to  use,  if  any.  Many  people  and 
all  children  should  be  urgently  persuaded  to  chew  their  food 
thoroughly,  and  to  use  plenty  of  food  that  is  hard  enough  to 
require  chewing.  Chewing  gum  would  be  useful  if  it  could  be 
restricted  to  a  half  hour  after  meals  and  the  gum  is  not  too 
much  contaminated  by  flavoring  and  condiments.  Many  chil- 
dren have  their  temporary  teeth  so  much  decayed  that  it  hurts 


DUTIES  TO  PATIENTS.  149 

to  chew  on  them  and  they  acquire  a  habit  of  eating  without 
chewing  which  persists  later  after  they  get  permanent  teeth  which 
they  might  use.  Many  other  children  are  fed  so  exclusively  on 
soft  food  that  they  have  little  occasion  to  use  the  muscles  of 
mastication  with  any  strength  or  vigor,  and  thus  it  happens  that 
many  children  go  to  the  orthodontist  and  many  who  do  not  go 
ought  to,  for  little  other  reason  besides  the  fact  that  the  muscles 
of  mastication  have  never  been  used  enough  to  perform  their 
normal  function  in  the  growth  and  development  of  the  face 
and  jaws. 

The  object  to  be  kept  in  view  and  never  lost  sight  of,  in 
the  case  of  each  individual  patient  is  the  preservation  of  the  teeth 
and  mouth  in  as  nearly  perfect  health  as  possible,  and  both  the 
dentist  and  his  patient  should  use  their  best  efforts  for  its 
accomplishment. 

Be  sure  to  have  your  patients  understand  that  your  profes- 
sional services  are  the  chief  element  of  value  in  your  fees.  "No 
trouble  to  show  goods"  is  a  maxim  of  trade  only.  You  are  not 
selling  goods  and  "consultations  and  examinations  free"  is  the 
brand  of  a  quack.  I  believe  that  carpenters,  masons  and  builders 
often  consult  about  jobs  and  make  estimates  without  charg- 
ing for  the  service  if  they  do  not  get  the  contracts. 
Physicians  and  lawyers  seldom  do  that,  and  dentists  should 
not  any  oftener  than  physicians.  If  a  patient  is  seated 
in  your  chair  and  you  make  an  examination  and  consult  about 
what  is  needed  to  be  done,  charge  a  fee  for  it,  whether  you  do 
anything  more  for  that  patient  or  not.  For  heaven's  sake,  don't 
let  anyone  who  ever  comes  into  your  office  acquire  there  any 
suspicion  that  she  can  go  round  to  a  dozen  offices  and  get  an 
examination  and  an  estimate  of  cost  from  each  one  and  never 
pay  a  cent  to  any  of  them.  Such  a  custom  is  lamentably  common 
in  some  places. 

Magnify  the  professional  aspects  of  your  services  and  make 
your  patients  pay  you  fully  as  well  for  removing  deposits,  pro- 
phylactic treatments,  removal  of  pulps  and  filling  root  canals, 
treating  diseased  teeth  and  gums,  etc.,  as  for  fillings,  inlays, 
crowns,  bridges  and  sets  of  teeth,  and  in  all  these  latter  opera- 
tions put  the  emphasis  on  the  professional  services  rendered  and 
not  on  the  labor  and  material. 


CHAPTER  XII. 

THE  DUTY  OF  THE  DENTIST  TO  OTHER  DENTISTS  AND  TO  THE  DENTAL 
PROFESSION.       PAPERS  READ  AT  SOCIETY  MEETINGS.      FEES. 

The  code  of  ethics  requires  that  all  rejutable  practitioners 
are  to  be  upheld  and  defended  in  every  possible  way  with  their 
patients  and  the  public,  save  only  when  the  welfare  of  a  patient 
makes  it  unavoidable  to  condemn  an  operation  that  has  been 
made  or  some  mode  of  practice  that  has  been  advocated.  There 
will  occasionally  arise  awkward  discrepancies  between  your 
opinions  of  certain  cases  and  the  opinions  of  some  other  man 
whom  a  patient  may  quote  to  you,  which  may  prove  ir- 
reconcilable and  may  require  tact  and  a  careful  speech  and  manner 
to  avoid  injustice  to  the  other  man.  You  will  often  be  very  liable 
to  form  unjust  opinions  of  the  skill  and  honesty  of  other  prac- 
titioners, especially  in  the  first  years  of  practice  before  your 
observations  of  the  patients  in  your  own  care  have  extended 
over  a  long  enough  time  to  make  you  realize  the  great  number 
and  variety  of  causes  that  may  shorten  the  durability  of  opera- 
tions or  cause  them  to  fail,  besides  the  want  of  skill  and  thor- 
oughness in  making  them.  You  must  remember,  too,  that  opera- 
tions of  other  men  which  you  find  defective  or  useless  may  have 
been  made  under  difficulties  too  great  to  be  overcome  and  of 
which  the  present  appearance  and  behavior  of  the  patient  give 
no  indication. 

The  code  of  ethics  of  the  Illinois  State  Dental  Society  says 
(Section  4),  "One  dentist  should  not  disparage  the  services  of 
another  to  a  patient.  Criticism  of  work  which  is  apparently 
defective  may  be  unjust  through  lack  of  knowledge  of  the  con- 
ditions under  which  the  work  was  performed.  The  duty  of  the 
dentist  is  to  remedy  any  defect  without  comment." 

Patients  will  sometimes  complain  to  you  of  the  treatment 
they  have  received  at  the  hands  of  some  other  dentist,  and  in  a 
large  proportion  of  cases  you  will  have  the  pleasure  to  make  such 
explanations  as  will  (or  ought  to)  restore  their  good  opinion  of 


DUTY  OF  THE  DENTIST.  151 

him,  and  show  them  that  the  unsatisfactory  result  is  a  misfortune 
instead  of  a  fault,  or  that  it  may  be  due  to  their  own  neglect. 

There  is  no  safety  for  you  as  regards  the  treatment  of 
other  practitioners  unless  kindness  and  charitableness  are  rooted 
in  your  character  and  find  constant  illustration  in  your  conduct. 
Patients  will  hold  you  in  higher  esteem  if  they  find  you  c&reful 
of  the  good  name  and  professional  reputation  of  others.  Selfish 
and  envious  men  are  tempted  to  disparage  others  in  the  hope  to 
exalt  themselves  in  the  minds  of  their  patients ;  the  effect  being 
usually  the  reverse,  or  it  may  be  only  serving  to  lower  the 
patient's  estimation  of  the  entire  profession. 

There  may  be  cases  brought  to'  your  notice  occasionally  in 
which  incompetence  or  dishonesty  are  so  surely  apparent  as  to 
admit  of  no  excuse  or  palliation.  Usually  it  is  wisest  to  pass 
them  in  silence,  but  you  are  under  no  obligations  to  do  so  if  the 
welfare  of  your  patient,  or  of  other  patients,  or  the  community, 
may  be  promoted  by  expressing  your  opinion  of  him  in  plain 
terms.  Dishonesty  has  no  claims  upon  your  charity  or  forbear- 
ance, to  restrain  you  from  warning  others  who  might  become 
its  victims. 

Patients  who  come  to  you  because  their  regular  dentist  is 
absent  or  sick  or  for  any  reason  is  inaccessible,  require  especially 
careful  treatment.  Nothing  should  be  done  for  them  beyond 
what  is  strictly  necessary  for  their  welfare  till  they  can  return  to 
their  own  dentist,  and  particular  Avatchfulness  should  be  exercised 
not  to  discredit  or  excite  suspicion  of  anything  that  has  been 
done  for  them.  Of  course  fees  may  be  taken  for  what  is  done, 
though  it  is  common  for  many  men  to  perform  trifling  services 
without  a  fee,  as  a  courtesy  to  the  other  dentist.  The  courtesy, 
however,  is  more  to  the  patient  than  to  the  other  dentist,  for 
if  you  take  no  fee  for  what  you  do,  neither  does  the  other  man. 
A  good  rule  is  to  treat  such  patients  as  you  would  your  own 
patients.  If  the  service  is  such  that  you  would  do  it  without  a 
fee  for  one  of  your  own  patients,  then  charge  no  fee  to  another. 
If  the  service  is  such  that  you  would  charge  a  fee  to  one  of  your 
own  patients,  then  charge  a  fee  to  the  patient  of  another  dentist. 

It  is  not  necessary,  if  it  were  possible,  to  give  many  rules  m 
detail  for  the  treatment  of  other  dentists.     The  basis  for  them 


152  PROFESSIONAL  ETHICS. 

all  is  justice  and  kindness,  having  regard  to  both  the  patient  and 
dentist  and  those  qualities  of  character  acting  freely  will  be 
nearer  right  than  if  we  attempt  to  follow  arbitrary  rules.  The 
same  general  rule  holds  good  for  the  patients  of  other  dentists 
2'S  for  your  own :  the  patient's  good  is  the  first  consideration. 

The  dental  profession  of  the  present  day  has  fallen 
heir  to  a  great  accumulation  of  professional  knowledge,  skill 
and  experience,  as  well  as  a  vast  number  of  ingenious  instru- 
ments, appliances  and  apparatus,  the  free  use  of  which  makes 
us  all  large  debtors  to  our  profession,  both  to  the  living  and 
the  dead,  whose  efforts,  observations,  studies,  successes  and 
failures  have  gradually  established  the  standards  of  practice 
for  the  present  generation. 

How  can  this  large  debt  be  discharged?  The  first  thing 
to  say  is  that  it  cannot  be  discharged.  The  benefits  have 
been  freely  given  and  freely  received.  No  man  may  hope  to 
give  to  his  profession  as  much  as  he  has  received  from  it. 
No  children  do  as  much  for  parents  (if  the  parents  are  every- 
thing they  ought  to  be)  as  the  parents  have  done  for  them. 
The  only  way  that  debt  can  be  discharged  is  by  giving  to 
the  next  generation  a  similar  care,  instruction,  guidance  and 
affection.  No  generation  of  men  can  add  so  much  to  the 
permanent  possessions  of  the  world  as  they  have  received 
from  their  long  lines  of  ancestors.  What  is  required  of  each 
generation  is  that  it  use  its  heritage  received  from  the  past 
wisely,  without  wasting  it,  and  also  add  its  own  contribution 
to  the  permanent  possessions  of  the  world  instead  of  con- 
suming everything  it  receives  and  produces  for  its  own  use 
and  pleasure.  The  best  acknowledgement  and  the  highest 
honor  a  man  can  pay  to  his  predecessors  in  the  profession  is 
to  make  himself  as  well  qualified  as  possible  to  discharge  its 
duties,  and  to  conduct  his  practice  upon  the  highest  level  of 
ability  and  disinterestedness.  The  man  who  does  his  whole 
duty  to  his  patients  has  gone  more  than  half  way  in  the  dis- 
charge of  his  duty  to  his  profession,  but  this  is  not  enough. 
The  profession  would  degenerate  very  rapidly  if  every  man 
isolated  himself  in  his  own  practice,  read  no  professional 
books  or  journals  and  did  not  cooperate  in  any  way  with  his 


SOCIETY  PAPERS.  153 

professional  brethren.  It  is  indispensable  that  you  belong  to 
one  or  more  dental  societies,  attend  their  meetings  and  in- 
terest yourself  in  their  affairs.  You  must  take  and  read 
several  dental  journals.  One  is  not  enough.  The  time  has 
long  passed  when  every  paper  of  importance  read  anywhere 
was  published  in  all  the  journals.  They  now  do  very  little 
reprinting  from  each  other  except  in  the  form  of  digests  and 
brief  extracts.  The  Cosmos,  The  Review,  The  Items  of  In- 
terest, The  Digest  and  the  Dental  Summary  and  Oral  Hy- 
giene are  any  of  them  likely  sometimes  to  have  articles  you 
cannot  well  afford  to  miss  but  would  miss  unless  you  take 
the  journals  that  publish  them.  You  cannot  ignore  dental 
journals  and  dental  societies  for  five  years  without  becoming 
a  "back  number"  in  your  profession.  And  probably  you  would 
not  have  the  least  idea  that  you  were  behind  the  times.  It 
is  very  bad  policy  to  have  your  patients  give  you  the  first 
information  you  have  of  new  things  and  new  methods  of 
practice  that  are  being  brought  into  use. 

PAPERS  READ  BEFORE  DENTAL  SOCIETIES. 

Papers  to  be  read  before  dental  societies  or  published 
in  the  journals  should  be  considered  of  importance  enough 
to  give  time  for  their  preparation,  and  careful  study  and 
thought  sufiicient  to  make  them  as  good  as  your  ability  and 
resources  for  information  will  permit.  A  man  ought  to  think 
himself  disgraced  who  comes  before  a  dental  society  and  says 
that  he  was  unable  to  make  any  preparation  for  his  paper 
and  had  to  write  it  within  the  last  few  days  before  the  meet- 
ing, or  on  the  way  coming  there,  and  therefore  could  not  send 
copies  of  it  to  the  men  who  have  been  appointed  to  discuss 
it.  An  exception  must  of  course  be  made  in  the  case  of  a 
man  who,  from  a  few  notes,  gives  an  extemporaneous  lec- 
ture about  matters  which  he  has  made  a  close  study  for 
fifteen  or  twenty  years. 

Direct  quotations  should  always  be  in  quotation  marks, 
and  usually,  though  not  always,  the  authorship  should  be  in- 
dicated in  the  reading,  and  if  thoughts  or  ideas  have  been 
consciously  received  from  known  sources  credit  should  be 
given  even  though  the  phraseology  is  not  quoted.     Papers 


154  PROFESSIONAL   ETHICS. 

read  before  societies  become  the  property  of  the  societies 
before  whom  they  are  read,  unless  the  author  stipulates  to 
retain  the  ownership.  If  a  man  reads  the  same  paper  before 
some  other  society  he  should  do  so  by  the  permission  of  the 
society  that  first  heard  it,  and  the  right  of  publication  goes 
with  the  ownership  of  the  paper.  It  sometimes  happens  that 
several  societies,  occasionally  many  societies,  desire  to  hear 
some  important  paper  and  I  believe  that  men  often  read 
such  papers  in  several  places  without  going  through  the 
formality  of  asking  permission  from  the  society  that  first 
heard  it.  Probably  they  do  so  on  the  presumption  that  there 
would  not  be  the  least  likelihood  that  permission  would  be 
refused,  but  the  society  that  first  heard  the  paper  has  the 
exclusive  right  to  publish  it.  Some  men  in  such  cases  re- 
write their  papers  and  make  changes  sufficient  to  destroy  the 
identity,  and  then,  of  course,  the  new  paper  is  published  by 
the  society  before  which  it  is  read. 

If  an  invitation  to  read  a  paper  or  take  part  in  a  discus- 
sion before  a  dental  society  is  accepted,  every  reasonable 
effort  should  be  made  to  keep  the  appointment.  If  unfore- 
seen circumstances  arise  that  make  it  quite  impossible  to  do 
so,  immediate  notice  should  be  sent  to  the  proper  officer  of 
the  society,  and  if  practicable,  the  paper  should  be  prepared 
and  sent  to  the  meeting  so  that  it  may  be  read  by  some  one 
instead  of  the  author.  The  same  duty  to  fulfil  the  engagement 
applies  with  equal  force  to  those  who  accept  invitations  to 
appear  as  operators  or  demonstrators  in  a  clinic.  In  a  list  of 
fifty  or  sixty  clinicians  there  are  usually  several  who  fail 
to  appear  and  neglect  to  send  any  word  of  explanation  or 
apology.  Such  men  justify  the  suspicion  that  their  only 
motive  in  accepting  the  appointment  was  to  obtain  the  notor- 
iety of  having  their  names  published  in  the  announcement 
of  the  meeting  and  feel  no  sense  of  obligation  to  fulfil  their 
promise.  It  would  be  proper  if  the  society  were  to  call  such 
men  to  account  for  unethical  conduct  and  punish  them  in 
some  suitable  way  unless  they  were  able  to  give  a  satisfac- 
tory explanation  and  apology.  The  executive  and  adminis- 
trative officers  of  a  society  should  consider  it  their  duty  to 


FEES.  155 

attend  its  meetings,  and   should   make   much   greater  efforts 
to  do  so  than  is  to  be  required  of  the  unofficial  members. 

FEES. 

The  ethical  requirements  in  respect  to  fees,  so  far  as 
stated  in  the  code  of  ethics  of  the  National  Dental  Associa- 
tion are  found  in  Article  II  section  4,  as  follows :  "When  gen- 
eral rules  have  been  adopted  by  members  of  the  profession 
practicing  in  the  same  localities  in  relation  to  fees,  it  is  un- 
professional and  dishonorable  to  depart  from  those  rules,  ex- 
cept when  variation  of  circumstance  requires  it.  And  it  is 
ever  to  be  regarded  as  unprofessional  to  warrant  operations 
as  an  inducement  to  patronage." 

No  maximum  fee  bill  should  ever  be  adopted  by  any 
society,  but  I  am  convinced  that  in  many  localities  the  in- 
comes of  all  the  dentists  could  be  somewhat  increased  and, 
what  is  of  much  more  importance,  the  average  excellence  of 
operations  would  be  raised,  by  an  agreement  among  all  the 
dentists  in  the  town  or  neighborhood  upon  a  minimum  scale 
of  fees  considerably  higher  than  the  average  fees  the  men 
are  getting  now.  It  seems  pretty  evident  that  in  many  places 
men  are  getting  incomes  too  small  for  their  education  and 
their  abilities,  and  in  order  to  get  these  inadequate  incomes 
they  are  obliged  to  hurry  through  too  many  operations  in  a 
day  to  have  it  possible  to  make  them  as  well  as  they  should. 
If  the  standard  of  average  excellence  of  dental  operations  in 
any  community  can  be  raised  it  will  be  worth  far  more  to 
that  community  than  the  increased  amount  of  money  they 
will  have  to  pay  for  them.  No  minimum  fee  bill  should 
prevent  any  man  from  doing  charity  work  for  needy  persons 
to  the  extent  that  he  can  afford  and  is  willing,  as  occasion 
may  arise,  but  it  is  right  to  exercise  some  care  not  to  be 
imposed  upon  by  persons  not  really  needy.  It  is  rather  mor- 
tifying to  find,  after  cutting  a  bill  heavily  to  some  one  you 
suppose  to  be  needy,  that  they  have  been  round  to  half  a 
dozen  ofifices  to  find  out  who  they  could  get  down  to  the 
lowest  figure.  One  remedy  for  "shopping"  is  for  every  dentist 
to  charge  such  a  fee  for  examinations  and  consultations  that  such 
people  will  be  unwiling  to  pay  it  to  half  a  dozen  different 


156  PROFESSIONAL  ETHICS. 

men.  Your  standard  of  fees  should  be  high  enough  so  that 
when  you  are  busy  in  a  fairly  good  practice  (good  in  the 
number  of  patients)  you  can  take  time  enough  for  each  opera- 
tion to  do  it  the  best  you  are  able  to,  and  can  have  a  reason- 
able amount  of  time  for  charity  work,  enough  to  keep  your 
office  in  first  class  shape,  well  furnished  and  cared  for,  above 
all  things,  clean,  and  equipped  with  everything  needful  for 
the  most  perfect  operations  and  the  most  efficient  service, 
provide  for  your  family  in  at  least  moderate  comfort,  educate 
your  children,  give  something  to  a  few  of  the  calls  for  charity 
and  philanthropy,  and  provide  for  your  old  age. 


CHAPTER  XIII. 

COMMISSIONS   AND   SPLIT    FEES — CODES  OF   ETHICS. 

The  Principles  of  Medical  Ethics,  article  VI,  section  3,  is 
as  follows :  'Tt  is  detrimental  to  the  public  good  and  degrad- 
ing to  the  profession,  and  therefore  unprofessional,  to  give 
or  receive  a  commission.  It  is  also  unprofessional  to  divide 
a  fee  for  medical  advice  or  surgical  treatment,  unless  the 
patient  or  his  next  friend  is  fully  informed  as  to  the  terms  of 
the  transaction." 

"The  patient  should  be  made  to  realize  that  a  proper  fee 
should  be  paid  the  family  physician  for  the  service  he  renders 
in  determining  the  surgical  or  medical  treatment  suited  to  the 
condition,  and  in  advising  concerning  those  best  qualified  to 
render  any  special  service  that  may  be  required  by  the 
patient." 

The  Code  of  Ethics  of  the  Illinois  State  Dental  Society, 
section  3,  has  this  to  say  about  commissions :  "It  is  unpro- 
fessional for  dentists  to  pay  or  accept  commissions  on  fees  for 
profesional  services,  or  on  prescriptions  or  other  articles  sup- 
plied to  patients  by  pharmacists  or  others." 

There  is  some  reason  to  fear  that  some  men  of  otherwise 
reputable  standing  do  not  observe  these  rules  with  strictness. 
It  has  been  intimated  that  some  surgeons  ask  the  physician 
who  brings  them  a  patient  to  assist  in  the  operation,  and  while 
the  assistance  m^ay  be  only  nominal,  it  furnishes  the  excuse 
for  splitting  the  fee,  and  more  than  one  extracting  specialist 
and  more  than  one  orthodontist  in  the  beginning  of  his  special 
practice  has  sought  to  induce  other  dentists  to  refer  patients 
to  him  by  offering  them  some  certain  percentage  of  the  fees 
he  received  from  such  patients.  Such  transactions  have  been 
defended  with  some  show  of  plausibility,  for  the  dentist  or 
physician  who  recommends  a  patient  to  go  to  some  particular 
.specialist,  whose  skill  and  wisdom  he  knows,  performs  a  real 
service  to  his  patient,  and  the  more  so  if  he  goes  with  the 
patient  to  the  specialist  and  consults  with  him  about  the  case, 


158  PROFESSIONAL  ETHICS. 

and  in  the  latter  case,  especially,  he  is  entitled  to  render  his 
own  bill  to  the  patient  for  such  services.  He  also  renders  a 
real  service  to  the  specialist,  for  he  wins  the  patient  for  him 
and  in  many  cases  is  the  real  salesman  of  the  specialist's 
services  (if  such  an  expression  may  be  allowed  in  regard  to 
such  a  transaction),  instead  of  the  speciahst  having  to  win  the 
patient  himself,  as  he  would  have  to  do  if  the  patient  came  of 
his  own  initiative  solely.  One  fundamental  objection  to  com- 
missions and  split-fees  is  that  usually  neither  of  the  parties 
feels  at  all  willing  to  have  the  patient  know  anything  about 
it.  The  only  honorable  and  straightforward  course  is  for  each 
to  render  his  own  bill  to  the  person  who  is  expected  to  pay 
it.  This  leaves  the  general  practitioner  and  the  specialist 
quite  free  each  to  set  his  own  estimate  of  value  upon  the 
service  he  has  rendered  to  the  patient.  If  it  is  objected  that 
the  specialist's  fees  are  usually  much  greater  than  those  of 
the  general  practitioner,  and  patients  are  often  less  willing 
to  pay  the  physician  or  dentist  a  proper  fee  for  his  services 
in  advising  and  sending  them  to  the  specialist  than  they  are 
to  pay  the  specialist's  large  fee  for  making  the  operation,  it 
must  be  replied  that  an  honorable  man  ought  not  to  wish  a 
tee  for  which  he  is  unwilling  to  render  a  bill.  And  if  it  is 
further  objected  that  the  general  practitioner  has  rendered  to 
the  specialist  a  service  of  real  value  and  importance,  for  which 
he  receives  no  pecuniary  reward,  it  is  answered  that  a  fee  or 
commission  paid  under  such  circumstances  subjects  the  prac- 
titioner to  the  temptation  to  send  patients  where  he  can  get 
the  best  commission  instead  of  where  they  can  get  the  best 
treatment,  and  if  he  is  not  in  the  least  influenced  by  such  a 
consideration,  he  will  surely  fall  under  the  suspicion  of  it, 
and  he  can  better  afi'ord  to  do  without  the  commission.  The 
right  way  is  to  charge  a  proper  fee  for  consultation  and  advice, 
and  if  time  and  money  are  spent  in  going  with  the  patient  to 
the  specialist,  charge  a  fee  and  expenses  for  that,  but  so  far 
as  the  mere  telling  the  patient  what  specialist  to  go  to,  call  it 
an  act  of  good  will  and  neighborliness  and  let  it  go  at  that. 
You  would  not  listen  very  patiently  to  a  patient  who  came 
and  asked  you  to  pay  him  a  commission  for  sending  you  a 


COMMISSIONS  AND  SPLIT  FEES.  159 

patient,  and  the  case  would  not  be  so  very  different  from  what 
it  would  be  for  you  to  ask  a  commission  for  sending  a  patient 
to  a  specialist,  or,  if  we  put  it  the  other  way  and  say  that  it  is 
the  new  patient  who  is  served  or  benefited  by  the  man  who 
tells  him  what  dentist  to  go  to,  you  never  heard  of  a  man  who 
was  asked  if  he  could  recommend  a  good  dentist  replying: 
"If  you  will  give  me  a  couple  of  dollars  I  will  tell  you  of  a 
first  class  dentist."  The  truth  is,  a  great  many  important 
services  are  done,  and  must  be  done,  without  any  payment  for 
them  in  money. 

*Resolution  (preceded  by  a  long  preamble — six  "Where- 
ases") offered  by  Dr.  H.  J,  McKellops  and  adopted  by  the 
American  Dental  Association,  1880: 

"Resolved,  That  this  Association  discountenance  in  a 
formal  and  emphatic  manner  the  pernicious  practice  of  mem- 
bers of  the  profession,  but  more  especially  those  holding  high 
positions  in  our  schools,  of  allowing  their  names  to  appear 
in  advertisements  as  indorsing  either  any  special  material  or 
compound  for  filling  teeth  or  any  therapeutic  agent  whatso- 
ever." 

Dr.  McKellops  sent  to  the  secretary's  desk  a  dental  jour- 
nal containing  the  advertisement  of  a  material  for  filling  teeth, 
with  the  recommendations  of  seven  professors  in  dental  col- 
leges attached. 

Dr.  Buckingham,  in  discussion,  said  he  had  refused  to 
give  recommendation  if  the  formula  was  unknown  to  him. 

Dr.  Morgan  said :  "Regular  physicians  are  not  found 
to  recommend  an  article  in  this  way.  *  *  *  jf  ^^  physi- 
cian knoAvs  an  article  or  preparation  to  be  good,  the  pages 
of  the  medical  journals  are  open  to  him.  The  whole  matter 
appears  to  be  in  direct  violation  of  the  code  of  dental  ethics. 
It  is  no  matter  if  the  components  and  methods  of  preparing 
are  generally  known,  the  tendency  of  the  practice  of  giving 
testimonials  of  this  character  is  held  to  be  to  lower  the  dignity 
of  the  profession." 

The  unwritten  Law  of  Dental  Ethics  read  before  Ameri- 
can Dental  Association,  1880.  Csomos,  1880,  page  639.  Last 
paragraph  but  one : 

♦Cosmos,  1880.  p.  538. 


160  PROFESSIONAL  ETHICS. 

"What  I  am  urging  is  the  creation  of  a  goal  towards 
which  we  shall  press.  In  our  personal  relations  that  goal 
is  the  cultivation  of  mutual  consideration;  in  professional 
work,  the  highest  good  of  those  committed  to  our  care ;  in 
professional  conversation,  the  clear  expression  of  positive 
ideas ;  in  professional  life,  the  maintenance  of  personal  honor ; 
in  professional  study,  the  securing  of  valuable  information ; 
in  society  relations,  the  devotion  of  one's  best  energies  to  the 
promotion  of  the  general  good;  in  the  labor  of  scientific  re- 
search, the  exercise  of  that  calm,  persistent,  wise  discrimina- 
tion that  digs  and  tests,  that  gathers  and  sifts,  so  that  golden 
grain  and  not  weightless  chaff  may  be  the  product." 

CODE  OF   ETHICS  OF  THE  AMERICAN    MEDICAL  ASSOCIATION. 
flint's   commentary — INTRODUCTION 

"In  various  points  of  view,  the  practice  of  medicine  when 
contrasted  with  other  pursuits,  is  peculiar.  The  medical  prac- 
titioner does  not  deal  with  facts  and  laws  having  the  exact- 
ness of  those  pertaining  to  physics.  In  employing  means  for 
certain  ends,  he  cannot  calculate  results  with  mathematical 
precision.  The  problems  of  disease  *  *  *  offer  a  wide 
scope  for  the  exercise  of  judgment  in  the  practical  applica- 
tion of  medical  knowledge.  It  is  by  no  means  easy  in  all 
cases  for  the  practitioner  himself  to  judge  correctly  of  the 
results  of  his  practice,  and  for  those  not  versed  in  the  study 
of  disease  it  is  an  impossibility ;  hence  he  is  often  blamed 
undeservedly,  and  as  often,  perhaps,  he  receives  praise  not 
strictly  his  due.  People  cannot  judge  with  certainty  of  the 
merits  of  a  physician  by  the  character  of  his  work." 

"Hence  the  choice  of  a  family  doctor  is  often  determined 
by  other  circumstances  than  his  knowledge  and  skill.  *  *  * 
In  no  other  profession  or  calling  are  extrinsic  means  avail- 
able for  competition  to  the  same  extent  as  in  the  practice 
of  medicine  (or  dentistry)  and  in  no  other  pursuits  are  the 
opportunities  so  great  for  ungenerous  and  unscrupulous  ad- 
vantages. Under  these  circumstances  it  is  not  to  be  won- 
dered at  that  physicians  (and  dentists)  are  peculiarly  sen- 
sitive respecting  their  professional  relations  and  rival  prac- 
titioners.    *     *     * 


ORIGIN  OF  MEDICAL  CODE.  161 

"It  is,  perhaps,  a  common  impression  that  the  objects 
of  a  code  of  ethics  have  exclusive  reference  to  the  interests 
of  the  profession.  So  far  from  this,  the  objects  are  of  far 
more  importance  to  the  pubHc  welfare  than  to  physicians. 
The  truth  of  this  will  be  apparent  to  all  who  read  the  code. 

"Prior  to  1847  the  codes  of  medical  ethics  which  existed 
in  this  country  were  instituted  in  State  or  local  societies,  and 
in  many,  probably  in  most  of  the  States  of  the  Union  there 
were  none.  At  the  convention  which  resulted  in  the  organ- 
ization of  the  American  Medical  Association  in  1847  a  com- 
mittee of  which  Dr.  Isaac  Hays  was  chairman,  were  instructed 
to  report  a  code  of  ethics.  The  code  which  they  reported  was 
adopted  unanimously  and  has  since  been  recognized  as  the 
national  code  throughout  this  country.  In  his  report  Dr. 
Hays  says :  'On  examining  a  great  number  of  codes  of  ethics 
adopted  by  different  societies  in  the  United  States  it  was 
found  that  they  were  all  based  on  that  prepared  by  Dr. 
Thomas  Percival  (of  England)  and  published  in  1803,  and 
the  phrases  of  this  writer  were  preserved  to  a  considerable 
extent  in  all  of  them.  Percival's  code  was  prepared  for  a 
son  who  was  about  to  engage  in  medical  practice,  and  who 
died  before  its  publication.  It  was  dedicated  to  another  son 
who  was  studying  medicine." 

"The  following  is  quoted  from  this  dedication :  'The 
relations  in  which  the  physician  stands  to  his  patients,  to  his 
brethren  and  the  public  are  complicated  and  multifarious,  in- 
volving much  knowledge  of  human  nature  and  extensive 
moral  duties.  The  study  of  professional  ethics,  therefore, 
cannot  fail  to  invigorate  and  enlarge  your  understanding, 
while  the  observance  of  the  duties  which  they  enjoin  will 
soften  your  manners,  expand  your  affections,  and  form  you 
to  that  propriety  and  dignity  of  conduct  which  are  essential 
to  the  character  of  a  gentleman.'  " 

ARTICLE    1,    SECS.    1    AND   2. 

Sec.  2.  "The  physician  does  not  compromise  his  self- 
respect  by  submitting  patiently  to  rudeness,  or  even  to  in- 


162  PROFESSIONAL  ETHICS. 

suits  from  a  sick  patient,  to  which  he  would  be  by  no  means 
bound  to  submit  quietly  if  the  patient  were  well. 

"The  ethical  rule  is  not,  at  least  to  the  same  extent,  ap- 
plicable to  the  freinds  of  patients,  but  allowance  is  often  to 
be  made  for  the  disturbance  of  mind  arising  from  anxiety 
and  apprehension.     *     *     * 

"On  the  part  of  the  physician  (or  dentist)  it  is  a  gross 
impropriety  to  require  the  forbearance  of  his  sick  patients 
and  their  friends.  *  *  *  Roughness  and  lack  of  courtesy 
are  inexcusable,  and  brutality  toward  patients  or  their  friends 
is  a  grievous  offence  against  the  medical  (or  dental)  profes- 
.  sion.  It  is  especially  reprehensible  toward  hospital  or  in- 
firmary or  charity  patients,  because  they  have  not  the  privi- 
lege to  change  their  physician  (or  dentist)  if  dissatisfied  with 
him,  hence  it  is  taking  a  mean  advantage  not  to  treat  such 
patients  with  attention  and  humanity." 

"The  binding  force  of  secrecy  as  regards  all  information 
obtained  in  connection  with  professional  relations,  whenever 
it  is  desired,  or  desirable  on  the  part  of  the  patients  or  their 
friends  *  *  *  jg  not  sufficiently  appreciated  by  many 
members  of  the  medical  profession  and  still  less  by  the  pub- 
lic. *  *  *  A  more  judicious  reserve  than  is  now  practiced 
by  not  a  few  physicians  would  soon  lead  to  a  better  under- 
standing of  the  ethical  duty  of  secrecy  on  the  part  of  the 
public,  *  *  *  i3^^  thg  ground  is  by  no  means  to  be  taken 
that  nothing  is  to  be  communicated  to  friends,  acquaintances 
or  the  public  respecting  cases  of  disease.  It  would  be  sim- 
ply absurd  to  take  this  ground.  The  condition  of  the  patient 
in  respect  of  danger  and,  in  some  instances,  the  probable 
duration  of  disease,  may  properly  be  made  known.  *  *  * 
In  respect  of  the  knowledge  of  criminal  acts  the  physician 
is  not  to  play  the  part  of  a  detective  or  informer.  *  *  * 
A  criminal  has  a  right  to  medical  services  in  sickness." 

"In  England  the  law  makes  the  divulging  of  professional 
secrets  compulsory  when  called  upon  as  a  witness  in  court. 
The  law  in  France  recognizes  the  obligations  of  secrecy." 


CODE  OF  ETHICS.  163 

CODE   OF    ETHICS   OF   THE   ILLINOIS    STATE   DENTAL    SOCIETY. 
ADOPTED    MAY,    1909. 

Section  1.  In  his  dealings  with  patients  and  with  the 
profession,  the  conduct  of  the  dentist  should  be  in  accordance 
with  the  Golden  Rule,  both  in  its  letter  and  its  spirit. 

Sec.  2.  It  is  unprofessional  for  a  dentist  to  advertise 
by  handbills,  posters,  circulars,  cards,  signs,  or  in  newspapers 
or  other  publications,  calling  attention  to  special  methods  of 
practice,  or  claiming  excellence  over  other  practitioners,  or  to 
use  display  advertisements  of  any  kind.  This  does  not  ex- 
chide  a  practitioner  from  using  professional  cards  of  suitable 
size,  v^'ith  name,  titles,  address  and  telephone  number  printed 
in  modest  type,  nor  having  the  same  character  of  card  in  a 
newspaper.  Neither  does  it  prevent  a  practitioner  who  con- 
fines himself  to  a  specialty  from  merely  announcing  his 
specialty  on  his  professional  card. 

Sec.  3.  It  is  unprofessional  for  dentists  to  pay  or  accept 
commissions  on  fees  for  professional  services,  or  on  prescrip- 
tions or  other  articles  supplied  to  patients  by  pharmacists  or 
others. 

Sec.  4.  One  dentist  should  not  disparage  the  services  of 
another  to  a  patient.  Criticism  of  work  which  is  apparently 
defective  may  be  unjust  through  lack  of  knowledge  of  the 
conditions  under  which  the  work  was  performed.  The  duty 
of  the  dentist  is  to  remedy  any  defect  without  comment. 

Sec.  5.  If  a  dentist  is  consulted  in  an  emergency  by  the 
patient  of  another  practitioner  who  is  temporarily  absent  from 
his  office,  the  duty  of  the  dentist  so  consulted  is  to  relieve 
the  patient  of  any  immediate  disability  by  temporary  service 
only,  and  then  refer  the  patient  back  to  the  regular  dentist. 

Sec.  6.  When  a  dentist  is  called  in  consultation  by  a 
fellow-practitioner  he  should  hold  the  discussions  in  the  con- 
sultation as  confidential,  and  under  no  circumstances  should 
he  accept  charge  of  the  case  without  the  request  of  the  dentist 
who  has  been  attending  it. 

Sec.  7.  The  dentist  should  be  morally,  mentally  and 
physically  clean,  and  honest  in  all  his  dealings  with  his  fellow- 


164  CODE  OF  ETHICS. 

men,  as  comports  with  the  dignity  of  a  cultured  and  pro- 
fessional gentleman. 


CODE  OF  ETHICS  OF  THE  NATIONAL  DENTAL 
ASSOCIATION. 

ARTICLE  I. 

THE  DUTIES   OF  THE    PROFESSION   TO  THEIR  PATIENTS. 

>  Section   1.     The  dentist  should  be  ever  ready  to   respond 

to  the  wants  of  his  patrons,  and  should  fully  recognize  the 
'  obligations  involved  in  the  discharge  of  his  duties  toward 
them.  As  they  are  in  most  cases  unable  to  correctly  estimate 
the  character  of  his  operations,  his  own  sense  of  right  must 
guarantee  faithfulness  in  their  performance.  His  manner 
should  be  firm,  yet  kind  and  sympathizing,  so  as  to  gain  the 
respect  and  confidence  of  his  patients ;  and  even  the  simplest 
case  committed  to  his  care  should  receive  that  attention  which 
is  due  to  operations  performed  on  living  sensitive  tissue. 

Sec.  2.  It  is  not  to  be  expected  that  the  patient  will 
possess  a  very  extended  or  a  very  accurate  knowledge  of  pro- 
fessional matters.  The  dentist  should  make  due  allowance 
for  this,  patiently  explaining  many  things  which  may  seem 
quite  clear  to  himself,  thus  endeavoring  to  educate  the  public 
mind  so  that  it  will  properly  appreciate  the  beneficent  efforts 
of  our  profession.  He  should  encourage  no  false  hopes  by 
promising  success  when,  in  the  nature  of  the  case,  there  is 
uncertainty. 
^^  f^t  Sec.  3.  The  dentist  should  be  temperate  in  all  things, 
^       jy  lieep'mg  both  mind  and  body  in  the  best  possible  health,  that 

^  his  patients  may  have  the  benefit  of  that  clearness  of  judg- 

ment and  skill  which  is  their  right. 


ARTICLE  II. 

MAINTAINING     PROFESSIONAL     CHARACTER. 

Section  1.     A  member  of  the  dental  profession  is  bound 
to  maintain  it  honor,  to  labor  earnestly  to  extend  its  sphere 


CODE   OF   ETHICS.  165 

of  usefulness.  He  should  avoid  everything  in  language  and 
conduct  calculated  to  dishonor  his  profession,  and  should 
ever  manifest  a  due  respect  for  his  brethren.  The  young 
should  show  special  respect  to  their  seniors ;  the  aged  special 
encouragement  to  their  juniors. 

Sec.  2.  It  is  unprofessional  to  resort  to  public  advertise- 
ments, cards,  handbills,  posters  or  signs,  calling  attention  to 
peculiar  styles  of  work,  lowness  of  prices,  special  modes  of 
operating;  or  to  claim  superiority  over  neighboring  practi- 
tioners; to  publish  reports  of  cases  or  certificates  in  the  public 
prints ;  to  circulate  or  recommend  nostrums ;  or  to  perform 
any  other  similar  acts.  But  nothing  in  this  section  shall  be 
be  so  construed  as  to  imply  that  it  is  unprofessional  for  den- 
tists to  announce  in  the  public  prints,  or  by  cards,  simply 
their  names,  occupation  and  place  of  business,  or,  in  the  same 
manner,  to  announce  their  removal,  absence  from,  or  return 
to  business,  or  to  issue  to  their  patients  appointment  cards 
having  a  fee  bill  for  professional  services  thereon. 

Sec.  3.  When  consulted  by  the  patient  of  another  prac- 
titioner, the  dentist  should  guard  against  inquiries  or  hints 
disparaging  to  the  family  dentist,  or  calculated  to  weaken  the 
patient's  confidence  in  him ;  and  if  the  interests  of  the  patient 
will  not  be  endangered  thereby,  the  case  should  be  temporarily 
treated,  and  referred  back  to  the  family  dentist. 

Sec.  4.  When  general  rules  shall  have  been  adopted  by 
members  of  the  profession  practicing  in  the  same  localities  in 
relation  to  fees,  it  is  unprofessional  and  dishonorable  to  de- 
part from  those  rules,  except  when  variation  of  circumstances 
requires  it.  And  it  is  ever  tc  be  regarded  as  unprofessional  to 
warrant  operations  as  an  inducement  to  patronage. 


ARTICLE  III. 

CONSULTATION. 


Consultations  should  be  promoted  in  difficult  or  protracted 
cases,  as  they  give  rise  to  confidence,  energy,  and  broader 
views  in  practice.  In  consultations,  that  courtesy  and  just 
dealing  which  is  the  right  of  all  should  be  especially  observed. 


166  CODE  OF  ETHICS. 

ARTICLE  IV. 

THE    RELATIVE   DUTIES    OF   DENTISTS    AND    PHYSICIANS. 

Dental  surgery  is  a  specialty  in  medical  science.  Phy- 
sicians and  dentists  should  both  bear  this  in  mind.  The  den- 
tist is  professionally  limited  to  diseases  of  the  dental  organs 
and  adjacent  parts.  With  these  he  should  be  more  familiar 
then  the  general  practitioner  is  expected  to  be ;  and  while  he 
recognizes  the  broader  knowledge  of  the  physician  in  regard 
to  diseases  of  the  general  system,  the  latter  is  under  equal 
obligations  to  respect  his  higher  attainments  in  his  specialty. 


ARTICLE  V. 

THE    MUTUAL  DUTIES    OF   THE    PROFESSION    AND  THE  PUBLIC. 

Dentists  are  frequent  witnesses,  and  at  the  same  time  the 
best  judges,  of  the  impositions  perpetrated  by  quacks,  and  it 
is  their  duty  to  enlighten  and  warn  the  public  in  regard  to 
them.  For  this  and  many  other  benefits  conferred  by  the 
competent  and  honorable  dentist,  the  profession  is  entitled 
to  the  confidence  and  respect  of  the  public,  who  should  al- 
ways discriminate  in  favor  of  the  true  man  of  science  and 
integrity  against  the  empiric  and  imposter.  The  public  has 
no  right  to  tax  the  time  and  talents  of  the  profession  in 
examinations,  prescriptions,  or  in  any  way  without  proper 
remuneration. 


PATENTS. 

The  medical  code  of  ethics  expressly  declares  that  it  is 
unprofessional  for  any  practitioner  of  medicine  to  hold  a 
patent  on  any  surgical  instruments  or  appliances,  or  upon  any 
medicine  or  pharmaceutical  preparation.  It  is  believed  that 
no  similar  clause  is  to  be  found  in  any  code  of  dental  ethics 
hitherto  adopted  by  any  dental  society.  There  has  been 
strenuous  effort,  however,  on  the  part  of  some  to  hold  the 
dental  profession  to  the  same  rule.  The  argument  in  favor 
of  it  is  that  anything  used  for  the  healing  of  the  sick  or  the 
cure  of  deformities  and  the  replacement  or  restoration  of  lost 
members  is  so  important  to  the  welfare  of  humanity  that  its 
use  should  not  be  restricted  or  its  price  increased  by  a  patent 
monopoly.  It  is  true  that  the  benefits  of  the  healing  art  in 
all  its  branches  and  applications  should  be  available  as  nearly 
as  possible  to  the  whole  population,  but  no  one  objects  to  the 
custom  of  individual  practitioners  receiving  compensation 
from  the  individual  patients  whom  they  serve,  and  it  is  difficult 
to  discover  any  ethical  principle  which  does  not  apply  with 
equal  force  to  the  man  who,  through  the  invention  of  some 
valuable  instrument  or  appliance  or  apparatus,  or  the  develop- 
ment and  introduction  of  some  better  process  or  mode  of  pro- 
cedure serves  all  patients  by  helping  all  practitioners  to  be- 
come more  efficient. 

Such  patents  as  those  upon  automatic  mallets,  dental 
chairs,  dental  engines,  fountain  cuspidors,  Donaldson  broaches 
and  almost  innumerable  other  articles  have  encountered  no 
appreciable  objection  or  opposition  from  the  dental  profession 
so  long  as  the  price  of  the  purchased  article  included  the 
compensation  to  the  inventor,  or  the  owner  of  the  patent ;  but 
when  the  owner  of  a  patent  has  sought  to  collect  money 
directly  for  the  use  of  an  invention,  as  for  instance,  the  op- 
pressive yearly  license  fee  collected  by  the  Goodyear  Dental 
Vucanite  Co..  the  similar  one  attempted  by  the  Crown  & 
Bridge  Co.,  and  the  moderate  single  fee  demanded  by  Dr. 
Taggart  for  the  use  of  his  inventions  during  the  whole  term 


168  PATENTS. 

of  his  patents,  the  profession  has  shown  intense  antagonism 
and  much  irritation  and  bitterness  toward  such  patents  and 
the  owners  of  them.  It  is  probable  that  in  the  case  of  Dr. 
Taggart,  whose  great  services  to  the  profession  few  or  none 
have  seriously  questioned,  the  opposition  is  due,  in  part  at 
least,  to  the  attitude  and  habit  of  mind  carried  over  from  the 
experiences  with  the  Vulcanite  Company  and  the  Crown  Com- 
pany, both  of  which  the  profession  generally  regarded  as  little 
better  than  robbers.  In  the  case  of  the  Goodyear  Dental  Vul- 
canite Co.  it  was  universally  believed  that  the  Cummings 
patent  was  not  valid  and  that  Cummings  was  not  the  inventor 
or  originator  of  the  process  of  making  artificial  teeth  on  rub- 
ber plates,  and  nobody  had  any  reason  to  suppose  that  any 
of  the  vast  sum  of  money  collected  from  the  dentists  ever 
benefited  anyone  who  had  ever  rendered  any  service  to  the 
dental  profession  or  the  patients  they  served.  The  same 
things  were  true  of  the  Crown  and  Bridge  Co.,  except  that 
their  attempts  to  collect  royalties  or  licenses  were  prevented 
by  the  Dental  Protective  Association  under  the  leadership  of 
Dr.  J.  N.  Crouse. 

It  has  been  sought  to  make  a  distinction  between  patents 
for  things  that  can  be  manufactured  and  sold  to  the  dentists 
and  patents  upon  things  to  be  made  by  the  dentist  for  in- 
dividual patients,  like  crowns,  bridges  and  inlays,  and  these 
latter  have  been  called  "process  patents."  Dr.  Crouse  used 
to  say  that  all  patents  are  "process  patents,"  and  he  was 
pretty  nearly  right,  for  the  first-class  named  above  are  patents 
upon  the  "process"  of  making  hundreds  or  thousands  of  like 
things  in  a  shop  or  factory,  while  the  latter  class  of  patents 
are  for  making  hundreds  or  thousands  of  similar  things  which 
are  not  alike,  but  each  adapted  to  an  individual  place  or  use. 
Whether  it  is  practicable  to  frame  a  law  which  will  dis- 
criminate clearly  enough  these  different  uses  of  invented 
processes  to  grant  patents  upon  one  class  and  refuse  them  to 
the  other  class,  or  whether  it  would  be  good  public  policy  to 
do  so  if  it  could  be  done,  I  will  not  attempt  to  affirm  or  deny. 
This  much  appears  to  be  plain  enough,  however,  that  so  long 
as  the  United  States  grants  these  so-called  "process  patents" 


PATENTS.  169 

and  upholds  them  in  the  courts  it  is  futile  and  foolish  to  ignore 
or  resist  a  patent  solely  on  this  ground.  If  there  is  a 
probability  that  a  patent  has  been  granted  to  some  one  who 
was  not  the  real  inventor,  or  if  for  a  process  or  article  in  such 
common  use  before  the  patent  was  applied  for  as  to  be  public 
property,  in  other  words  if  there  is  doubt  about  the  validity 
of  the  patent,  of  course  it  is  the  privilege  of  any  man  or  asso- 
ciation of  men  to  test  the  validity  of  the  patent  in  the  courts. 
In  the  "Principles  of  Medical  Ethics,"  chapter  second, 
article  first,  section  five  reads  as  follows,  "Patents  and  per- 
quisites.— It  is  unprofessional  to  receive  remuneration  from 
patents  for  surgical  instruments  or  medicines ;  to  accept  re- 
bates on  prescriptions  or  surgical  appliances,  or  perquisites 
from  attendants  who  aid  in  the  care  of  patients."  There  can 
be  no  reasonable,  doubt  about  the  impropriety  of  accepting 
rebates  or  prequisities  (which  has  been  discussed  in  another 
place). 

As  regards  patents  there  would  seem  to  be  room  for 
honest  differences  of  opinion.  It  is  difficult  to  say  upon  what 
moral  grounds  a  man  can  be  denied  any  remuneration,  except 
what  may  accrue  in  his  own  personal  practice ;  for  a  discovery 
or  improvement  he  may  make  in  the  practice  of  medicine, 
whether  it  be  some  new  instrument  or  appliance,  or  some 
new  medicine.  It  is  true  that  sentiments  of  philanthropy  and 
also  professional  duty  would  dictate  that  the  benefits  of  im- 
provements and  discoveries  be  as  widely  diffused  at  as  little 
cost  as  possible,  but  in  some  cases  this  can  better  be  done 
by  a  monopoly  in  the  manufacture.  For  instance,  in  the  case 
of  many  instruments  and  remedies  it  will  be  easy  for  one 
manufacturing  plant  to  supply  the  whole  demand.  It  is  evi- 
dent therefore  that  if  two,  or  perhaps  half  a  dozen  different 
parties  incur  the  expense  of  providing  similar  manufacturing 
facilities,  the  price  of  the  product  must  be  increased  if  they 
are  all  to  get  a  fair  profit  on  their  cost  of  manufacture ;  be- 
sides which  the  pressure  of  competition  offers  the  temptation 
to  cheapen  the  product  by  deteriorating  its  quality.  Some  one 
has  got  to  manufacture  these  things  and  it  seems  hardly 
reasonable  that  the  men  who  originated  them  should  be  the 


170  PATENTS. 

only  ones  who  are  forbidden  to  profit  by  giving  to  tiie  manu- 
facture such  supervision  as  may  insure  their  perfection. 

Whether  the  foregoing  considerations  can  be  considered 
sound  or  not,  it  is  nevertheless  undoubtedly  true  that  the 
great  body  of  the  medical  profession  are  steadfastly  loyal  to 
the  restrictions  laid  down  in  their  "Principles  of  Medical 
Ethics,"  in  respect  to  patents,  and  remedies  the  ingredients 
or  mode  of  manufacture  of  which  are  kept  secret.  Probably 
this  loyalty  rests  not  so  much  upon  grounds  of  strict  justice 
and  equity  as  upon  motives  of  philanthropy  and  humanity, 
for  there  is  no  other  class  of  men  who  respond  so  freely  and 
generously,  both  individually  and  collectively,  to  the  appeal  of 
the  sufifering  and  the  needy  as  do  the  physicians,  and  they  take 
the  attitude,  and  dentists  should  also,  that  everything  within 
reason  that  they  can  do  for  the  advancement  or  success  of 
their  profession  is  due  from  them  in  acknowledgment  of 
what  they  have  received  from  their  profession. 

A  vast  fund  of  knowledge,  skill  and  experience  has  been 
accumulated  by  the  medical  profession  through  hundreds  of 
years, — and  by  the  dental  profession  also,  though  it  is  far 
less  ancient, — and  all  these  acquirements  are  freely  available 
to  the  present  generation,  the  only  limitation  being  the  indi- 
vidual capacity  to  acquire  and  use  it.  Having  received  so 
great  a  gift  it  would  be  shameful  for  any  man  to  seek  to  ex- 
ploit the  giver  financially  for  any  return  benefits  he  might  be 
able  to  confer. 

When  a  man  has  made  such  great  personal  sacrifices  in 
conferring  some  great  benefit  upon  his  profession  and  hu- 
manity as  to  impoverish  himself  and  his  family  there  ought 
to  be  some  provision  by  which  he  can  be  rewarded  and  taken 
care  of,  but  it  is  scarcely  possible  to  have  any  rule  or  law 
applicable  to  human  affairs  that  will  not  work  some  injustice  or 
hardship  in  a  few  instances,  and  it  is  believed  that  the  exploit- 
ing for  gain  of  every  new  thing  in  the  practice  of  medicine, 
as  is  done,  rightly  enough,  in  industrial  and  commercial  affairs, 
would  work  so  much  inconvenience,  hardship,  and  actual 
damage  to  life  and  health  as  vv^ould  far  outweigh  the  occasional 


PATENTS.  171 

injustice  and  hardship  to  a  few  individuals  that  are  caused  by 
the  present  rule. 

The  absence  from  the  codes  of  dental  ethics  of  any 
prohibition  similar  to  that  in  the  "Principles  of  Medical 
Ethics"  leaves  the  dental  profession  freer,  and  we  may,  and 
should  by  force  of  public  opinion  establish  as  firmly  as  pos- 
sible the  custom  of  the  medical  profession  in  respect  to 
patents,  while  we  are  also  free  to  recognize  the  propriety,  in 
rare  instances,  for  some  man  who  has  made  great  sacrifices, 
and  conferred  great  benefits,  to  compel  from  a  reluctant  pro- 
fession by  means  of  a  patent  some  adequate  remuneration  for 
great  services. 


CHAPTER  XIV. 

PRINCIPLES    OF    MEDICAL    ETHICS    OF    THE 
AMERICAN  MEDICAL  ASSOCIATION.* 

CHAPTER    I. 

THE   DUTIES   OF    PHYSICIANS    TO   THEIR    PATIENTS. 
THE   physician's  RESPONSIBILITY. 

Section  1. — A  profession  has  for  its  prime  object  the  service 
it  can  render  to  humanity;  reward  or  financial  gain  should  be  a 
subordinate  consideration.  The  practice  of  medicine  is  a  pro- 
fession. In  choosing  this  profession  an  individual  assumes  an 
obligation  to  conduct  himself  in  accord  with  its  ideals. 

PATIENCE,  DELICACY  AND  SECRECY. 

Sec.  2. — Patience  and  delicacy  should  characterize  all  the 
acts  of  a  physician.  The  confidences  concerning  individual  or 
domestic  life  entrusted  by  a  patient  to  a  physician,  and  the 
defects  of  disposition  or  flaws  of  character  observed  in  patients 
during  medical  attendance  should  be  held  as  a  trust  and  should 
never  be  revealed  except  when  imperatively  required  by  the  laws 
of  the  state.  There  are  occasions,  however,  when  a  physician 
must  determine  whether  or  not  his  duty  to  society  requires  him 
to  take  definite  action  to  protect  a  healthy  individual  from  be- 
coming infected,  because  the  physician  has  knowledge,  obtained 
through  the  confidences  entrusted  to  him  as  a  physician,  of  a 
communicable  disease  to  which  the  healthy  individual  is  about  to 
be  exposed.  In  such  a  case,  the  physician  should  act  as  he  would 
desire  another  to  act  toward  one  of  his  own  family  under  like 
circumstances.  Before  he  determines  his  course,  the  physician 
should  know  the  civil  law  of  his  commonwealth  concerning 
privileged  communications. 


*Reprinted  by  permission  from  the  pamphlet  published  by  the  Ameri- 
can Medical  Association. 


PHYSICIANS  AND  THEIR  PATIENTS.  173 

PROGNOSIS. 

Sec.  3. — A  physician  should  give  timely  notice  of  dangerous 
manifestations  of  the  disease  to  the  friends  of  the  patient.  He 
should  neither  exaggerate  nor  minimize  the  gravity  of  the 
patient's  condition.  He  should  assure  himself  that  the  patient  or 
his  friends  have  such  knowledge  of  the  patient's  condition  as 
will  serve  the  best  interests  of  the  patient  and  the  family. 

PATIENTS    MUST    NOT   BE   NEGLECTED. 

Sec.  4. — A  physician  is  free  to  choose  whom  he  will  serve. 
He  should,  however,  always  respond  to  any  request  for  his 
assistance  in  an  emergency  or  whenever  temperate  public  opinion 
expects  the  service.  Once  having  undertaken  a  case,  a  physician 
should  not  abandon  or  neglect  the  patient  because  the  disease  is 
deemed  incurable ;  nor  should  he  withdraw  from  the  case  for 
any  reason  until  a  sufficient  notice  of  a  desire  to  be  released  has 
been  given  the  patient  or  his  friends  to  make  it  possible  for  them 
to  secure  another  medical  attendant. 

CHAPTER   n. 

THE  DUTIES   OF   PHYSICIANS   TO    EACH    OTHER   AND   TO    THE 
PROFESSION    AT   LARGE. 

Article  I. — Duties  to  the  Profession. 

UPPIOLD    honor   of   PROFESSION. 

Section.  1. — The  obligation  assumed  on  entering  the  pro- 
fession requires  the  physician  to  comport  himself  as  a  gentleman 
and  demands  that  he  use  every  honorable  means  to  uphold  the 
dignity  and  honor  of  his  vocation,  to  exalt  its  standards  and  to 
extend  its  sphere  of  usefulness.  A  physician  should  not  base 
his  practice  on  an  exclusive  dogma  or  sectarian  system,  for  "sects 
are  implacable  despots ;  to  accept  their  thraldom  is  to  take  away 
all  liberty  from  one's  actions  and  thought."  (Nicon,  father  of 
Galen.) 

DUTY    OF   MEDICAL   SOCIETIES. 

Sec.  2. — In  order  that  the  dignity  and  honor  of  the  medical 
profession  may  be  upheld,  its  standards  exalted,  its  sphere  of 


174  PRINCIPLES  OF  MEDICAL  ETHICS. 

usefulness  extended,  and  the  advancement  of  medical  science 
promoted,  a  physician  should  associate  himself  with  medical 
societies  and  contribute  his  time,  energy  and  means  in  order 
that  these  societies  may  represent  the  ideals  of  the  profession. 

DEPORTMENT. 

Sec.  3. — A  physician  should  be  "an  upright  man,  instructed 
in  the  art  of  healing."  Consequently,  he  must  keep  himself 
pure  in  character  and  conform  to  a  high  standard  of  morals,  and 
must  be  diHgent  and  conscientious  in  his  studies.  "He  should 
also  be  modest,  sober,  patient,  prompt  to  do  his  whole  duty  with- 
out anxiety;  pious  without  going  so  far  as  superstition,  conduct- 
ing himself  with  propriety  in  his  profession  and  in  all  the  actions 
of  his  life."     (Hippocrates.) 

ADVERTISING. 

Sec.  4. — Solicitation  of  patients  by  circulars  or  advertise- 
ments, or  by  personal  communications  or  interviews,  not  war- 
ranted by  personal  relations,  is  unprofessional.  It  is  equally 
unprofessional  to  procure  patients  by  indirection  through  solicitors 
or  agents  of  any  kind,  (as)  or  by  indirect  advertisement,  or  by 
furnishing  or  inspiring  newspaper  or  magazine  comments  con- 
cerning cases  in  which  the  physician  has  been  or  is  concerned. 
All  other  like  self-laudations  defy  the  traditions  and  lower  the 
tone  of  any  profession  and  so  are  intolerable.  The  most  worthy 
and  effctive  advertismement  possible,  even  for  a  young  physician, 
and  especially  with  his  brother  physicians,  is  the  establishment 
of  a  well-merited  reputation  for  professional  ability  and  fidelity. 
This  cannot  be  forced,  but  must  be  the  outcome  of  character 
and  conduct.  The  publication  or  circulation  of  ordinary  simple 
business  cards,  being  a  matter  of  personal  taste  or  local  custom, 
and  sometimes  of  convenience,  is  not  per  s.e  improper.  As  implied, 
it  is  unprofessional  to  disregard  local  customs  and  offend  recog- 
nized ideals  in  publishing  or  circulating  such  cards. 

It  is  unprofessional  to  promise  radical  cures;  to  boast  of 
cures  and  secret  methods  of  treatment  or  remedies ;  to  exhibit 
certificates  of  skill  or  of  success  in  the  treatment  of  diseases ;  or 
to  employ  any  methods  to  gain  the  attention  of  the  public  for 
the  purpose  of  obtaining  patients. 


PHYSICIANS  AND  THEIR  PROFESSION.  175 

PATENTS  AND  PERQUISITES 

Sec.  5. — It  is  unprofessional  to  receive  remuneration  from 
patents  for  surgical  instruments  or  medicines ;  to  accept  rebates 
on  prescriptions  or  surgical  appliances,  or  perquisites  from  at- 
tendants who  aid  in  the  care  of  patients. 

MEDICAL    LAWS — SECRET    REMEDIES. 

Sec.  6. — It  is  unprofessional  for  a  physician  to  assist  un- 
qualified persons  to  evade  legal  restrictions  governing  the  prac- 
tice of  medicine ;  it  is  equally  unethical  to  prescribe  or  dispense 
secret  medicines  or  other  secret  remedial  agents,  or  manufacture 
or  promote  their  use  in  any  way. 

SAFEGUARDING    THE    PROFESSION. 

Sec.  7. — Physicians  should  expose  without  fear  or  favor, 
before  the  proper  medical  or  legal  tribunals,  corrupt  or  dishonest 
conduct  of  members  of  the  profession.  Every  physician  should 
aid  in  safeguarding  the  profession  against  the  admission  to  its 
ranks  of  those  who  are  unfit  or  unqualified  because  deficient 
either  in  nioral  character  or  education. 

Article  II. — Professional  Services  of  Physicians 
TO  Each  Other. 

PHYSICIANS  DEPENDENT  ON   EACH   OTHER. 

Section  1. — Experience  teaches  that  it  is  unwise  for  a  phy- 
sician to  treat  m.embers  of  his  own  family  or  himself.  Conse- 
quently, a  physician  should  always  cheerfully  and  gratuitously 
respond  with  his  professional  services  to  the  call  of  any  physician 
practicing  in  his  vicinity,  or  of  the  immediate  family  dependents 
of  physicians. 

COMPENSATION    FOR    EXPENSES. 

Sec.  2. — When  a  physician  from  a  distance  is  called  on  to 
advise  another  physician  or  one  of  his  family  dependents,  and 
the  physician  to  whom  the  service  is  rendered  is  in  easy  financial 
circumstances,  a  compensation  that  will  at  least  meet  the  travel- 
ing expenses  of  the  visiting  physician  should  be  profifered.  When 


176  PRINCIPLES  OF  MEDICAL  ETHICS. 

such  a  service  requires  an  absence  from  the  accustomed  field  of 
professional  work  of  the  visitor  that  might  reasonably  be  ex- 
pected to  entail  a  pecuinary  loss,  such  loss  should,  in  part  at 
least,  be  provided  for  in  the  compensation  offered. 

0,NE  PHYSICIAN  TO  TAKE  CHARGE. 

Sec.  3. — When  a  physician  or  a  member  of  his  dependent 
family  is  seriously  ill,  he  or  his  family  should  select  a  physician 
from  among  his  neighboring  colleagues  to  take  charge  of  the 
case.  Other  physicians  may  be  associated  in  the  care  of  the 
patient  as  consultants. 

Article  III. — Duties  of  Physician  in  Consultations. 

CONSULTATIONS  SHOULD  BE  REQUESTED. 

Section  1. — In  serious  illness,  especially  in  doubtful  or  diffi- 
cult conditions,  the  physician  should  request  consultation. 

CONSULTATION  FOR  PATIENT's  BENEFIT. 

Sec.  2. — In  every  consultation,  the  benefit  to  be  derived  by 
the  patient  is  of  first  importance.  All  the  physicians  interested 
in  the  case  should  be  frank  and  candid  with  the  patient  and  his 
family.  There  never  is  occasion  for  insincerity,  rivalry  or  envy 
and  these  should  never  be  permitted  between  consultants. 

PUNCTUALITY. 

Sec.  3. — It  is  the  duty  of  a  physician,  particularly  in  the 
instance  of  a  consultation,  to  be  punctual  in  attendance.  When, 
however,  the  consultant  or  the  physician  in  charge  is  unavoidably 
delayed,  the  one  who  first  arrives  should  wait  for  the  other  for  a 
reasonable  time,  after  which  the  consultation  should  be  con- 
sidered postponed.  When  the  consultant  has  come  from  a  dis- 
tance, or  when  for  any  reason  it  will  be  difficult  to  meet  the 
physician  in  charge  at  another  time,  or  if  the  case  is  urgent,  or 
if  it  be  the  desire  of  the  patient,  he  may  examine  the  patient 
and  mail  his  written  opinion,  or  see  that  it  is  delivered  under 
seal,  to  the  physician  in  charge.  Under  these  conditions,  the 
consultant's  conduct  must  be  especially  tactful;  he  must  remem- 


PHYSICIANS  AND  THEIR  PROFESSION.  177 

ber  that  he  is  framing  an  opinion  without  the  aid  of  the  physician 
who  has  observed  the  course  of  the  disease. 

PATIENT  REFERRED  TO  SPECIALIST. 

Sec.  4. — When  a  patient  is  sent  to  one  specially  skilled  in 
the  care  of  the  condition  from  which  he  is  thought  to  be  suffer- 
ing, and  for  any  reason  it  is  impracticable  for  the  physician  in 
charge  of  the  case  to  accompany  the  patient,  the  physician  in 
charge  should  send  to  the  consultant  by  mail,  or  in  the  care  of 
the  patient,  under  seal,  a  history  of  the  case,  together  with  the 
physician's  opinion  and  an  outline  of  the  treatment,  or  so  much 
of  this  as  may  possibly  be  of  service  to  the  consultant;  and  as 
soon  as  possible  after  the  case  has  been  seen  and  studied,  the 
consultant  should  address  the  physician  in  charge  and  advise  him 
of  the  results  of  the  consultant's  investigation  of  the  case.  Both 
these  opinions  are  confidential  and  must  be  so  regarded  by  the 
consultant  and  by  the  physician  in  charge. 

DISCUSSIONS   IN    CONSULTATION. 

Sec.  5.— After  the  physicians  called  in  consultation  have 
completed  their  investigations  of  the  case,  they  may  meet  by 
themselves  to  discuss  conditions  and  determine  the  course  to  be 
followed  in  the  treatment  of  the  patient.  No  statement  or  dis- 
cussion of  the  case  should  take  place  before  the  patient  or  friends, 
except  in  the  presence  of  all  the  physicians  attending,  or  by  their 
common  consent;  and  no  opinions  or  prognostications  should  be 
delivered  as  a  result  of  the  deliberations  of  the  consultants,  w^hich 
have  not  been  concurred  in  by  the  consultants  at  their  conference. 

ATTENDING   PHYSICIAN   RESPONSIBLE. 

Sec.  6. — The  physician  in  attendance  is  in  charge  of  the  case 
and  is  responsible  for  the  treatment  of  the  patient.  Consequently, 
he  may  prescribe  for  the  patient  at  any  time  and  is  privileged  to 
vary  the  mode  of  treatment  outlined  and  agreed  on  at  a  con- 
sultation whenever,  in  his  opinion,  such  a  change  is  warranted. 
However,  at  the  next  consultation,  he  should  state  his  reasons 
for  departing  from  the  course  decided  on  at  the  previous  con- 
ference.    When  an  emergency  occurs  during  the  absence  of  the 


178  PRINCIPLES  OF  MEDICAL  ETHICS. 

attending  physician,  a  consultant  may  provide  for  the  emergency 
and  the  subsequent  care  of  the  patient  until  the  arrival  of  the 
physician  in  charge,  but  should  do  no  more  than  this  without  the 
consent  of  the  physician  in  charge. 

CONFLICT  OF  OPINION. 

Sec.  7. — Should  the  attending  physician  and  the  consultant 
find  it  impossible  to  agree  in  their  views  of  a  case  another  con- 
sultant should  be  called  to  the  conference  or  the  first  consultant 
should  withdraw.  However,  since  the  consultant  was  employed 
by  the  patient  in  order  that  his  opinion  might  be  obtained,  he 
should  be  permitted  to  state  the  result  of  his  study  of  the  case 
to  the  patient,  or  his  next  friend  in  the  presence  of  the  physician 
in  charge. 

CONSULTANT    AND    ATTENDANT. 

Sec.  8. — When  a  physician  has  attended  a  case  as  a  con- 
sultant, he  should  not  become  the  attendant  of  the  patient  dur- 
ing that  illness  except  with  the  consent  of  the  physician  who 
was  in  charge  at  the  time  of  the  consultation. 

Article  IV. — Duties  of  Physicians  in  Cases  of 
Interference. 

criticism  to  be  avoided. 

Section  1. — The  physician,  in  his  intercourse  with  a  patient 
under  the  care  of  another  physician,  should  observe  the  strictest 
caution  and  reserve;  should  give  no  disingenuous  hints  relative 
to  the  nature  and  treatment  of  the  patient's  disorder ;  nor  should 
the  course  of  conduct  of  the  physician,  directly  or  indirectly, 
tend  to  diminish  the  trust  reposed  in  the  attending  physician. 

social  calls  on  patient  of  another  physician. 

Sec.  2. — A  physician  should  avoid  making  social  calls  on 
those  who  are  under  the  professional  care  of  other  physicians 
without  the  knowledge  and  consent  of  the  attendant.  Should 
such  a  friendly  visit  be  made,  there  should  be  no  inquiry  relative 
to  the  nature  of  the  disease  or  comment  upon  the  treatment  of 


PHYSICIANS  AND  THEIR  PROFESSION.  179 

the  case,  but  the  conversation  should  be  on  subjects  other  than 
the  physical  condition  of  the  patient. 

SERVICES    TO   PATIENT   OF   ANOTHER    PHYSICIAN. 

Sec.  3. — A  physician  should  never  take  charge  of  or  pre- 
scribe for  a  patient  who  is  under  the  care  of  another  physician, 
except  in  an  emergency,  until  after  the  other  physician  has  re- 
linquished the  case  or  has  been  properly  dismissed. 

CRITICISM    TO    BE    AVOIDED. 

Sec.  4. — When  a  physician  does  succeed  another  physician 
in  the  charge  of  a  case,  he  should  not  make  comments  on  or 
insinuations  regarding  the  practice  of  the  one  who  preceded  him. 
Such  comments  or  insinuations  tend  to  lower  the  esteem  of  the 
patient  for  the  medical  profession  and  so  react  against  the  critic. 

EMERGENCY    CASES. 

Sec.  5. — When  a  physician  is  called  in  an  emergency  and 
finds  that  he  has  been  sent  for  because  the  family  attendant  is 
not  at  hand,  or  when  a  physician  is  asked  to  see  another  phy- 
sician's patient  because  of  an  aggravation  of  the  disease,  he 
should  provide  only  for  the  patient's  immediate  need  and  should 
withdraw  from  the  case  on  the  arrival  of  the  family  physician 
after  he  has  reported  the  condition  found  and  the  treatment 
administered. 

WHEN   SEVERAL   PHYSICIANS  ARE   SUMMONED. 

Sec.  6. — When  several  physicians  have  been  summoned  in  a 
case  of  sudden  illness  or  of  accident,  the  first  to  arrive  should 
be  considered  the  physician  in  charge.  However,  as  soon  as  the 
exigencies  of  the  case  permit,  or  on  the  arrival  of  the  acknowl- 
edged family  attendant  or  the  physician  the  patient  desires  to 
serve  him,  the  first  physician  should  withdraw  in  favor  of  the 
chosen  attendant ;  should  the  patient  or  his  family  wish  some  one 
other  than  the  physician  known  to  be  the  family  physician  to  take 
charge  of  the  case  the  patient  should  advise  the  family  physician 
of  his  desire.  When,  because  of  sudden  illness  or  accident,  a 
patient  is  taken  to  a  hospital,  the  patient  should  be  returned  to 
the  care  of  his  known  family  physician  as  soon  as  the  condition 


180  PRINCIPLES  OF  MEDICAL  ETHICS. 

of  the  patient  and  the  circumstances  of  the  case  warrant  this 
transfer. 

A  colleague's  patient. 

Sec.  7. — When  a  physician  is  requested  by  a  colleague  to 
care  for  a  patient  during  his  temporary  absence,  or  when,  because 
of  an  emergency,  he  is  asked  to  see  a  patient  of  a  colleague,  the 
physician  should  treat  the  patient  in  the  same  manner  and  with 
the  same  delicacy  as  he  would  have  one  of  his  own  patients  cared 
for  under  similar  circumstances.  The  patient  should  be  returned 
to  the  care  of  the  attending  physician  as  soon  as  possible. 

RELINQUISHING    PATIENT    TO    REGULAR    ATTENDANT. 

Sec.  8. — When  a  physician  is  called  to  the  patient  of  another 
physician  during  the  enforced  absence  of  that  physician,  the 
patient  should  be  relinquished  on  the  return  of  the  latter. 

SUBSTITUTING    IN    OBSTETRIC    WORK. 

Sec.  9. — W^hen  a  physician  attends  a  woman  in  labor  in  the 
absence  of  another  who  has  been  engaged  to  attend,  such  phy- 
sician should  resign  the  patient  to  the  one  first  engaged,  upon  his 
arrival;  the  physician  is  entitled  to  compensation  for  the  pro- 
fessional services  he  may  have  rendered. 

Article  V. — Differences  Between  Physicians. 

ARBITRATION. 

Section  1. — Whenever  there  arises  between  physicians  a 
grave  difference  of  opinion  which  cannot  be  promptly  adjusted, 
the  dispute  should  be  referred  for  arbitration  to  a  committee  of 
impartial  physicians,  preferably  the  Board  of  Censors  of  a  com- 
ponent county  society  of  the  American  Medical  Association. 

Article  VI. — Compensation. 

LIMITS   OF   gratuitous   SERVICE. 

Section  1. — The  poverty  of  a  patient  and  the  mutual  pro- 
fessional obligation  of  physicians  should  command  the  gratuitous 
services  of  a  physician.  But  institutions  endowed  by  societies, 
and  organizations  for  mutual  benefit,  or  for  accident,  sickness 


PHYSICIANS  AND  THEIR  PROFESSION.  181 

and  life  insurance,  or  for  analogous  purposes,  should  be  accorded 
no  such  privileges. 

CONTRACT    PRACTICE. 

Sec.  2. — It  is  unprofessional  for  a  physician  to  dispose  of 
his  services  under  conditions  that  make  it  impossible  to  render 
adequate  service  to  his  patient  or  which  interfere  with  reasonable 
competition  among  the  physicians  of  a  community.  To  do  this 
is  detrimental  to  the  public  and  to  the  individual  physician,  and 
lowers  the  dignity  of  the  profession. 

SECRET  DIVISION   OF   FEES    CONDEMNED. 

Sec.  3. — It  is  detrimental  to  the  public  good  and  degrading 
to  the  profession,  and  therefore  unprofessional,  to  give  or  to 
receive  a  commission.  It  is  also  unprofessional  to  divide  a  fee 
for  medical  advice  or  surgical  treatment,  unless  the  patient  or 
his  next  friend  is  fully  informed  as  to  the  terms  of  the 
transaction.  The  patient  should  be  made  to  realize  that  a  proper 
fee  should  be  paid  the  family  physician  for  the  service  he  ren- 
ders in  determining  the  surgical  or  medical  treatment  suited  to 
the  condition,  and  in  advising  concerning  those  best  qualified  to 
render  any  special  service  that  may  be  required  by  the  patient. 

CHAPTER    III. 

THE   DUTIES   OF  THE    PROFESSION    TO   THE    PUBLIC. 
PHYSICIANS    AS    CITIZENS. 

Section  1. — Physicians,  as  good  citizens  and  because  their 
professional  training  specially  qualifies  them  to  render  this  serv- 
ice, should  give  advice  concerning  the  public  health  of  the  com- 
munity. They  should  bear  their  full  part  in  enforcing  its  laws 
and  sustaining  the  institutions  that  advance  the  interests  of 
humanity.  They  should  co-operate  especially  with  the  proper 
authorities  in  the  administration  of  sanitary  laws  and  regula- 
tions. They  should  be  ready  to  counsel  the  public  on  subjects 
relating  to  sanitary  police,  public  hygiene  and  legal  medicine. 

PHYSICIANS    SHOULD    ENLIGHTEN    PUBLIC — DUTIES    IN    EPIDEMICS. 

Sec.  2. — Physicians,  especially  those  engaged  in  public  health 
work,  should  enlighten  the  public  regarding  quarantine  regula- 


182  PRINCIPLES  OF  MEDICAL  ETHICS. 

tions;  on  the  location,  arrangement  and  dietaries  of  hospitals, 
asylums,  schools,  prisons  and  similar  institutions ;  and  concerning 
measures  for  the  prevention  of  epidemic  and  contagious  diseases. 
When  an  epidemic  prevails,  a  physician  must  continue  his  labors 
for  the  alleviation  of  suffering  people,  without  regard  to  the  risk 
to  his  own  health  or  life  or  to  financial  return.  At  all  times,  it 
is  the  duty  of  the  physician  to  notify  the  properly  constituted 
public  health  authorities  of  every  case  of  communicable  disease 
under  his  care,  in  accordance  with  the  laws,  rules  and  regulations 
of  the  health  authorities  of  the  locality  in  which  the  patient  is. 

PUBLIC    WARNED. 

Sec.  3. — Physicians  should  warn  the  public  agaiinst  the 
devices  practiced  and  the  false  pretensions  made  by  charlatans 
which  may  cause  injury  to  health  and  loss  of  life. 

PHARMACISTS. 

Sec.  4. — By  legitimate  patronage,  physicians  should  recog- 
nize and  promote  the  profession  of  pharmacy ;  but  any  pharmacist, 
unless  he  be  qualified  as  a  physician,  who  assumes  to  prescribe 
for  the  sick,  should  be  denied  such  countenance  and  support. 
Moreover,  whenever  a  druggist  or  pharmacist  dispenses  deter- 
iorated or  adulterated  drugs,  or  substitutes  one  remedy  for 
another  designated  in  a  prescription,  he  thereby  forfeits  all 
claims  to  the  favorable  consideration  of  the  public  and  physicians. 

CONCLUSION. 

While  the  foregoing  statements  express  in  a  general  way 
the  duty  of  the  physician  to  his  patients,  to  other  members  of 
the  profession  and  to  the  profession  at  large,  as  well  as  of  the 
profession  to  the  public,  it  is  not  to  be  supposed  that  they  cover 
the  whole  field  of  medical  ethics,  or  that  the  physician  is  not 
under  many  duties  and  obligations  besides  these  herein  set  forth. 
In  a  word,  it  is  incumbent  on  the  physician  that  under  all  con- 
ditions, his  bearing  toward  patients,  the  public,  and  fellow  practi- 
tioner should  be  characterized  by  a  gentlemanly  deportment  and 
that  he  constantly  should  behave  toward  others  as  he  desires 
them  to  deal  with  him.     Finally,  these  principles  are  primarily 


PHYSICIANS  AND  THE  PUBLIC.  183 

for  the  good  of  the  public,  and  their  enforcement  should  be  con- 
ducted in  such  a  manner  as  shall  deserve  and  receive  the  en- 
dorsement of  the  community. 


PART    THIRD. 

DENTAL  JURISPRUDENCE. 

CHAPTER   XV. 

THE  STATUS  OF  THE  DENTIST — THE  RIGHT  TO  PRACTICE — POWER 
OF  THE  STATE  TO  REGULATE  PRACTICE —  RELATION  BETWEEN 
DENTIST  AND  PATIENT. 

^"Perhaps  a  legal  definition  of  Dentistry  has  not  yet  been 
formulated.  The  statutes  of  some  states  imply  that  dentistry 
is  a  branch  of  medicine  or  surgery.  Thus  the  statute  of  Michigan 
regulating  the  practice  of  medicine  or  surgery  provides :  'from 
practicing  medicine  or  surgery  {except  dentistry).'  The  defini- 
tions in  some  statutes  of  'practice  of  medicine'  are  broad  enough 
to  include  the  practice  of  dentistry  and  vice  versa.  Thus  the  act 
of  1882  of  Mississippi,  section  20,  provides  that  the  words 
'practice  of  medicine'  shall  mean  to  suggest,  recommend,  pre- 
scribe or  direct  for  the  use  of  any  person,  any  drug,  medicine, 
appliance,  or  other  agency,  whether  material  or  not  material, 
for  the  cure,  relief,  or  palliation  of  any  ailment  or  disease  of  the 
mind  or  body,  or  for  the  cure  or  relief  of  any  wound,  fracture 
or  other  bodily  injury,  or  any  deformity.'  "  It  is  plain  that  this 
definition  is  broad  enough  to  cover  the  whole  field  of  dentistry. 

^"The  Mississippi  Court  of  Errors  and  Appeals  has  held 
that  dentistry  is  a  department  of  the  medical  art.  In  Whit- 
comb  V.  Reid,^  the  question  before  the  court  was  whether  a 
dentist's  instruments  were  exempt  from  execution  under  a 
statute  exempting  the  'tools  of  a  mechanic  necessary  for  carry- 
ing on  his  trade."  The  Court  said:  'We  do  not  think  that  this 
provision  can  be  extended  to  the  description  of  instruments  in 
question.  A  dentist  cannot  be  properly  denominated  a  mechanic' 
It  is  true  that  the  practice  of  his  art  requires  the  use  of  instru- 
ments for  manual  operation,  and  that  much  of  it  consists  in 
manual  operation;  but  it  also  involves  a  knowledge  of  the 
physiology  of  the  teeth,  which  cannot  be  acquired  but  by  a  proper 


'Mikell,  p.  17,  Chap  1. 

^Mikell,  page  18. 

'31  Miss.  —  567  (1856). 


STATUS  OF  THE  DENTIST.  185 

course  of  study;  and  this  is  taught  by  learned  treatises  on  the 
subject,  and  as  a  distinct,  though  limited,  department  of  the 
medical  art  in  institutions  established  for  the  purpose.  It  re- 
quires both  science  and  skill  and  if  such  persons  could  be  included 
in  the  denomination  of  mechanics  because  their  pursuit  required 
the  use  of  mechanical  instruments  and  skill  in  manual  operation, 
the  same  reason  would  include  general  surgeons  under  the  same 
denomination,  because  the  practice  of  their  profession  depends, 
in  a  great  degree,  upon  similar  instruments  and  operative  skill. 

"Nor  could  such  a  pursuit  properly  be  said  to  be  a  'trade.' 
That  term  is  defined  to  denote  the  'business  or  occupation'  which 
a  person  has  learned,  and  which  he  carries  on  for  procuring  sub- 
sistence, or  for  profit — particularly  a  mechanical  employment, 
distinguished  from  the  liberal  arts  and  learned  professions  and 
from  agriculture.'  (Webster's  Dictionary.)  It  is  manifest  that 
a  pursuit  requiring  a  correct  knowledge  of  the  anatomy  and 
physiology  of  a  part  of  the  human  body  as  well  as  mechanical 
skill  in  the  use  of  the  necessary  instruments,  could  not  be  properly 
denominated  a  'trade.'  " 

^"There  are  a  few  decisions  that  dentistry  is  not  a  branch 
or  department  of  medicine  or  surgery.  In  State  v.  Fisher,- 
(Missouri)  this  conclusion  is  reached  by  a  bare  majority  of 
four  judges  to  three;  *  *  *  on  the  question  whether  the 
relator,  a  dental  surgeon,  was  exempt  from  jury  duty  under 
the  laws  of  Missouri.  The  statutes  provided  that  persons 
actually  exercising  the  functions  of  a  practitioner  of  medi- 
cine were  exempt.  The  majority  of  the  Court  after  point- 
ing out  the  rule  of  law  that  'privileges  and  exceptions  are  not 
favored  in  the  law,'  held  that  the  relator  was  not  a  'practi- 
tioner of  medicine  and  surgery  in  any  of  their  departments.'  " 

"Of  course  it  does  not  follow  that  because  dentistry  is  a 
branch  or  department  of  medicine  or  surgery,  that  a  dentist 
is  necessarily  a  'surgeon'  or  'physician'  within  the  meaning 
of  the  statutes  using  those  terms.  It  must  depend  in  each 
case  on  the  intent  of  the  legislature." 

^Case  of  DeFrance  on   question  of  being  allowed  to  tes- 


'Page  19. 

=119  Mo.,  344  (1893). 
'104  Mich.,  563  (1895). 


186  DENTAL  JURISPRUDENCE. 

tify  as  to  communications  made  to  him  by  a  patient.  A  statute 
forbade  a  surgeon  or  physician  from  so  testifying.  The  court 
held  the  act  did  not  apply  to  a  dentist. 

"The  Supreme  Court  of  Michigan  has  drawn  a  distinc- 
tion between  the  mechanical  and  scientific  work  of  a  dentist. 
In  Maxon  v.  Perrott^  the  court,  in  holding  that  a  dentist's 
instruments  were  exempt  from  execution  under  a  statute 
exempting  'mechanical  tools'  said :  'A  dentist  is  in  one  sense 
a  professional  man,  but  in  another  sense  his  calling  is  mainly 
mechanical,  and  the  tools  he  employs  are  used  in  mechanical 
operations.  *  *  *  Qf  late,  however,  as  the  physiology 
of  the  human  system  has  become  better  understood,  and  the 
relations  of  its  various  parts  and  their  mutual  dependence 
are  more  clearly  recognized,  dentistry  has  made  great  prog- 
ress as  a  science,  and  its  practitioners  claim,  with  much  jus- 
tice, to  be  classed  among  the  learned  professions.  It  is, 
nevertheless,  true  that  the  operations  of  the  dentist  are  still 
for  the  most  part  mechanical,  and,  so  far  as  tools  are  em- 
ployed, they  are  purely  so;  and  we  could  not  exclude  these 
tools  from  the  exemptions  which  the  statute  makes  without 
confining  the  construction  of  the  statute  within  limits  not 
justified  by  the  words  employed.  The  ordinary  meaning  of 
'mechanical  tools'  it  is  plain,  will  include  those  in  question, 
and  there  is  nothing  in  the  context  which  will  justify  us  in 
saying  that  the  legislative  design  would  exclude  them." 

"Indeed  the  courts  are  more  concerned  in  trying  to  do 
justice  and  to  interpret  the  legislation  well  than  in  making 
nice  distinctions  between  'professions'  and  'trades'  and  'arts' 
and  'sciences.'  They  have  not  hesitated,  when  justice  seemed 
to  demand  it,  to  hold  that  the  practice  of  medicine  was  a 
'trade'  and  a  physician  a  'tradesman.' "  (The  question  was 
on  a  claim  for  interest  on  a  bill  for  services,  the  statute  pro- 
viding that  accounts  of  'merchants,  tradesmen  and  mechan- 
ics' should  have  interest.) 

^"The  word  'tradesman'  does  not,  perhaps,  ordinarily 
cover  physicians ;  but  they  have  a  trade,  an  art,  a  mystery. 


m  Mich.,  332  (1868). 
M7  Ga.,  121  (1872). 


STATUS  OF  THE  DENTIST.  187 

They  usually  give  it  a  more  dignified  name,  to  wit,  profes- 
sion. One  of  the  definitions  of  trade  given  by  Webster  is 
'the  business  a  man  has  learned  by  which  he  earns  his  liveli- 
hood.'    And  this  at  last,  is  the  point  of  the  word." 

It  will  be  noticed  that  one  decision  quoted  refuses  to 
exempt  the  instruments  of  a  dentist  from  execution  for  debt 
under  a  statute  exempting  "the  tools  of  a  mechanic  necessary 
for  carrying  on  his  trade,"  while  another  decision,  in  another 
state  holds  a  dentist's  instruments  exempt  from  execution 
under  a  statute  exempting  "mechanical  tools."  Contradictory 
decisions  like  these,  of  course,  leave  the  legal  questions  to 
which  they  refer  in  uncertainty,  but  they  have  really  but 
little  relation  to  what  would  constitute  a  legal  definition  of 
dentistry. 

A  good  many  of  the  dental  laws  of  the  different  states, 
attempt  a  definition  of  dental  practice  for  the  purposes  of  the 
law  in  each  case.  That  of  the  Illinois  law  is  a  fair  type.  "Sec- 
tion 5.  Any  person  shall  be  regarded  as  practicing  dentistry 
or  dental  surgery  within  the  meaning  of  this  act,  who  shall 
treat,  or  profess  to  treat  any  of  the  diseases  or  lesions  of 
human  teeth  or  jaws,  or  extract  teeth  or  shall  prepare  and 
fill  cavities  in  human  teeth,  or  correct  the  malpositions  of 
teeth,  or  supply  artificial  teeth  as  substitutes  for  natural 
teeth:  Provided,  that  nothing  in  this  act  shall  be  so  con- 
strued as  to  prevent  regularly  licensed  physicians  or  sur- 
geons from  extracting  teeth."  This  does  not  specifically  pro- 
vide for  other  cases  in  which  the  field  of  the  physician  or 
surgeon  may  overlap  that  of  the  dentist,  as  may  sometimes 
be  the  case  in  diseases  and  surgical  operations  upon  the  jaws, 
the  mucous  membrane  of  the  mouth,  cases  of  ranula,  etc.  The 
Maryland  statute  is  more  comprehensive,  using  the  word 
"mouth"  instead  of  "teeth  and  jaws."  "Section  10.  Every 
person  shall  be  said  to  be  practicing  dentistry,  within  the 
meaning  of  this  act,  who  shall,  for  a  fee,  salary  or  other  com- 
pensation, paid  either  to  himself  or  to  someone  else  for  serv- 
ices rendered,  perform  operations  or  parts  of  operations  of 
any  kind  pertaining  to  the  mouth,  treat  diseases  or  lesions  of 
the  human  teeth  or  jaws,  or  correct  malpositions  thereof." 


188  DENTAL  JURISPRUDENCE. 

Using  the  word  "mouth"  instead  of  "teeth  and  jaws" 
enlarges  the  field  in  which  dentistry  and  medicine  or  surgery 
may  overlap  each  other,  but  this  is  provided  for  in  a  subse- 
quent section  by  the  broad  provision,  "nothing  in  this  article 
shall  be  so  construed  as  to  interfere  with  the  rights  and  priv- 
ileges of  resident  physicians  and  surgeons,  etc." 

As  a  matter  of  fact,  and  in  a  broad  definition,  it  is  beyond 
question  that  dentistry  is  a  branch  of  the  healing  art,  a 
specialty  of  medical  and  surgical  practice,  but  in  popular 
speech,  for  the  purposes  of  the  law,  and  in  methods  and  in- 
stitutions of  education  Dentistry  is  a  separate  profession  from 
that  of  medicine  and  surgery. 

THE    RIGHT    TO    PRACTICE    DENTISTRY — POWER    OF    THE    STATE    TO 
REGULATE    PRACTICE. 

"The  State  has  the  right  to  regulate  the  practice  of  den- 
tistry within  its  borders,  and  to  prescribe  such  reasonable 
conditions  as  a  prerequisite  to  practice  as  are  calculated  to 
exclude  from  the  profession  those  who  are  unfitted  to  dis- 
charge its  duties."^ 

"In  England,  Parliament,  being  supreme,  may  prescribe 
what  conditions  it  pleases  as  a  prerequisite  to  the  right  to 
practice.  In  the  United  States  the  right  to  practice  is  regu- 
lated by  the  State  Legislatures,  and  while  their  power  to 
prescribe  conditions  is  large,  it  is  limited  by  and  must  be 
exercised  in  conformity  with  the  constitution  of  the  State 
and  of  the  Federal  Government.  As  said  by  the  court  in 
Wilkins  v.  State:-  "The  courts  must  take  judicial  knowledge 
that  it  (the  dental  profession)  is  a  profession  requiring  skill, 
*  *  *  and  that  one  unskilled  in  the  profession  may  injure 
the  person  who  employs  him.  As  this  is  so,  then,  the  Legis- 
lature may  prescribe  the  qualifications  of  those  permitted  to 
practice  that  profession.  *  *  *  As  it  has  plenary  power 
of  the  whole  subject,  it  alone  must  be  the  judge  of  what  is 
wise  and  expedient,  both  as  to  the  qualifications  required  and 
as  to  the  method  of  ascertaining  those  qualifications.  The 
court  cannot  exercise  any  supervisory  power  over  the  Legis- 


'State  ex  rel  Smith  v.  Dental  Examiners,  31  Wash.,  492  (1903). 
ni3  Ind.,  514  (1887). 


STATUS  OF  THE  DENTIST.  189 

lature  as  long  as  it  keeps  within  the  limits  of  the  constitu- 
tion." It  is  within  those  limits,  "if  the  regulations  and 
conditions  it  prescribes  are  adopted  in  good  faith,  and  they 
operate  equally  upon  all  who  may  desire  to  practice,  and 
who  possess  the  required  qualifications,  and  if  they  are 
adapted  to  the  legislative  purpose  of  promoting  the  health 
and  welfare  of  the  people  by  excluding  from  the  practice 
those  who  are  ignorant  and  incapable."^     *     *     * 

"The  requirement  of  a  diploma  as  a  condition  of  the  right 
to  practice  does  not  render  the  law  unconstitutional."^ 

"Nor  does  the  fact  that  it  requires  the  possession  of  a 
diploma,  as  a  condition  of  being  allowed  to  practice,  by  those 
not  practicing  in  the  State  at  the  time  the  law  was  enacted, 
while  allowing  those  persons  to  practice  without  a  diploma 
who  were  practicing  in  the  State  at  the  time  the  law  was 
enacted,  render  the  law  unconstitutional  as  conflicting  with 
Section  2,  Art.  IV,  of  the  Federal  Constitution  providing: 
'The  citizens  of  each  State  shall  be  entitled  to  all  the  privi- 
leges and  immunities  of  citizens  in  the  several  states,'  or  with 
Section  1  of  the  Fourteenth  Amendment  of  the  Constitution 
providing :  'No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States. "^ 

It  is  not  necessary  to  quote  the  whole  of  Mikell's  second 
chapter.  All  the  important  provisions  of  the  various  dental 
laws  have  been  abundantly  sustained  by  the  courts.  AVe 
may  specify ;  the  requirement  of  those  in  practice  to  be  reg- 
istered within  a  specified  time  after  the  passage  of  the  law, 
providing  for  the  appointment  of  the  State  Board  of  Exam- 
iners by  the  State  Dental  Association.  The  requirement  that 
all  those  desiring  to  practice  shall  pass  examination,  and 
making  it  a  misdemeanor  to  practice  without  a  license  from 
the  Board  of  Examiners.  The  requirement  that  legal  prac- 
titioners, if  they  remove  to  another  state  must  be  examined 
and  licensed  by  the  Board  of  Examiners  of  the  state  to  which 


'State  V.  Creditor,  44  Kansas,  565  (1890). 

'State  V.  Vandersluis,  42  Minn.,  129  (1889). 

State  V.  Mcintosh.  250  Mo.,  589  (1907). 
'Ibid. 


190  DENTAL  JURISPRUDENCE. 

they  remove.  The  provision  excepting  "from  the  operation 
of  the  law  students  of  dentistry  during  the  period  of  enroll- 
ment in  a  dental  college  in  the  state." 

"The  statute,  however,  to  be  constitutional,  must  not  impose 
special  restrictions  or  burdens  on,  or  grant  special  privileges  to 
some  persons  over  others  engaged  in  the  same  profession  under 
the  same  circumstances.  Under  this  rule  it  has  been  held  that  a 
statute  providing  that  no  person  should  practice  dentistry  with- 
out having  obtained  a  degree  from  some  college,  or  a  license 
from  the  State  Dental  Society,  and  imposing  a  certain  fee,  but 
exempting  persons  who  have  resided  and  practiced  the  profession 
in  the  town  or  city  of  their  present  place  of  residence,  for  a 
specified  time,  was  unconstitutional  as  unduly  discriminating 
between  persons  of  the  same  class. "^ 

"A  statute  is  not  unconstitutional  which  requires  good  char- 
acter as  a  condition  to  the  right  to  practice,  or  which  lodges  the 
power  to  determine  the  person's  moral  fitness  in  a  legally  con- 
stituted body  of  men  learned  in  the  profession."- 

"requirements  of  statutes  regulating  practice." 
1.  In  General. — Statutes  vary  in  the  conditions  they  impose 
on  the  right  to  practice  dentistry.  The  most  usual  form  of 
statute  provides  as  a  requisite  to  the  right  to  engage  in  practice : 
(1)  The  possession  of  a  diploma;  (2)  The  passing  of  a  satis- 
factory examination;  (3)  Proof  of  good  moral  character;  (4) 
Receipt  of  a  license  from  the  Board  of  Examiners;  (5)  Registry 
of  the  license  with  the  proper  officer;  (6)  Payment  of  a  stated 
fee.  Some  statutes  do  not  require  the  passing  of  an  examina- 
tion if  the  applicant  possesses  a  degree;  others  do  not  require  a 
degree  if  the  applicant  passes  a  satisfactory  examination." 

"license  to  practice,  powers  of  the  dental  board.'" 
2.  Under  this  head  it  is  not  necessary  to  quote  Mikell  in  de- 
tail. Of  course  the  powers  of  the  dental  board  are  conferred  and 
limited  by  the  law  in  each  state.  The  courts  have  usually  been 
liberal  in  their  interpretation  of  the  dental  and  medical  laws, 
and  the  dental  and  medical  boards  have  large  powers  and  much 


^State  V.  Hinman,  (N.  H.)  18  Atl.,  194  (1889). 

'See  State  v.  State  Medical  Board,  32  Minn.,  324  (1884). 


STATUS  OF  THE  DENTIST.  191 

discretion.  I  will  make  a  few  quotations.  "The  functions  of 
the  Dental  Board  in  granting  or  refusing  a  license  is  in  whole 
or  in  part  quasi-judicial,  involving  investigation,  judgment  and 
discretion,  therefore  an  action  for  damages  will  not  lie  against 
such  board  for  refusing  to  grant,  or  for  revoking  a  license 
wrongfully,  if  in  so  doing  they  acted  without  malice."^ 

"Where  the  law  provides  that  the  possession  of  a  diploma 
of  a  'reputable  dental  college,'  or  Z'  'college  in  good  standing,' 
shall  be  a  requisite  to  the  issuance  of  a  license  by  the  board,  the 
board  has  power  to  decide  what  is  and  what  is  not  a  reputable 
college,  or  a  college  in  good  standing,  and  whether  the  college 

whose  diploma  the  applicant  holds  is  or  is  not  such  a  college."^ 

*     *     * 

"The  determination  by  the  board  of  the  question  whether 
or  not  a  dental  school  is  a  'reputable'  school  or  a  school  'in  good 
standing'  is  final,  .and  will  not  be  reviewed  by  the  courts  unless 
the  board  is  clearly  shown  to  have  abused  its  discretion  in  the 
matter,  or  to  have  been  guilty  of  arbitrary,  oppressive  or  male- 
volent conduct."*     *     * 

"A  board  of  dental  examiners  may  make  any  reasonable 
rules  and  regulations  they  see  fit  by  which  to  determine  whether 
or  not  a  dental  school  is  'reputable'  or  in  'good  standing.'  They 
cannot  delegate  the  right  to  decide  whether  z-  college  is  reputable 
or  not  to  a  dental  organization  beyond  the  limits  of  the  State. 
Thus  in  Dental  Examiners  v.  People,^  the  board  of  examiners 
refused  to  issue  a  license  to  an  applicant  until  his  application  was 
approved  by  the  National  Association  of  Dental  Examiners,  an 
association  composed  for  the  most  part  of  persons  living  outside 
of  the  state.  The  State  board  having  been  shown  to  have  been 
otherwise  satisfied  with  the  reputability  of  the  college  of  which 
the  applicant  held  a  degree,  the  court  granted  a  writ  of  mandamus 
to  compel  the  State  board  to  issue  the  license." 

"As  the  board,  however,  has  power,  when  no  rules  are  pre- 
scribed by  statute  for  determining  the  reputability  of  a  college. 


'People  V.  Dental  Examiners,  110  111.,  180  (1884)  ;  State  v.  Chittenden. 
127  Wis.,  468  (1906). 

'People  V.  Dental  Examiners,  110  III,  180  (1884). 
'123  111.,  227  (1887). 


192  DENTAL  JURISPRUDENCE. 

to  make  any  reasonable  rules  to  determine  this  question,  the  fact 
that  a  State  board  adopts  the  rules  of  a  dental  organiza-tion  out- 
side of  the  state,  and  is  in  large  part  governed  by  its  recommenda- 
tions in  determining  the  reputability  of  colleges,  is  no  ground  for 
the  interference  of  the  court,  when  it  appears  that  the  board 
was  not  absolutely  bound  by  the  rules  of  the  foreign  association, 
but  could,  in  their  discretion  require  more  or  less  of  a  college 
than  the  foreign  association  demanded."^ 

"When  the  statute  makes  it  a  prerequisite  to  the  right  to 
a  license  that  the  applicant  shall  be  of  good  moral  character, 
and  provides  that  on  proof  of  conviction  of  a  misdemeanor  a 
license  granted  shall  be  canceled,  the  board  of  examiners  may 
refuse  to  grant  a  license  to  a  person  who  has  been  convicted 
of  practicing  dentistry  in  the  State  without  a  license."- 

"3.  Registration — After  the  dentist  has  obtained  his  license 
from  the  dental  board,  the  next  step  required  by  the  law 
is  the  registration  of  such  license.  The  language  of  the 
statutes  providing  for  registration  is  not  identical.  Some  stat- 
utes provide  that  the  licenses  shall  be  registered  within  sixty 
days  from  the  issuance  thereof,  some  within  thirty  days,  and 
others  are  silent  as  to  the  time  within  which  registration  shall 
take  place." 

When  no  time  for  registration  is  mentioned  in  the  law 
it  is  wise  to  presume  that  the  license  is  to  be  registered  before 
beginning  practice,  and  to  act  accordingly. 

"The  statutes  vary,  likewise,  in  their  provisions  as  to  the 
place  where,  and  the  officer  with  whom  the  license  must  be 
registered.  Some  provide  that  it  shall  be  registered  in  the 
county  in  which  the  holder  expects  to  practice;  some  require 
it  to  be  registered  with  the  judge  of  probate,  others  with  the 
clerk  of  the  county." 

"Some  require  separate  registration  in  each  county  in 
which  the  holder  of  the  license  intends  to  practice ;  and  pro- 
vide for  duplicate,  etc.,  registration.  It  is  not  clear  always 
from  the  wording  of  some  of  the  statutes,  nor  do  the  decisions 


'Williams  v.  Dental  Examiners,  93  Tenn.,  619  (1894). 

'See  Battles  v.  Board  of  Registry  in  Dentistry,  16  R.  I.,  372   (1888). 


STATUS  OF  THE  DENTIST.  193 

make  it  any  clearer,  whether,  under  the  statute,  the  license, 
once  registered  in  the  proper  place,  entitles  the  holder  to  prac- 
tice anywhere  in  the  State,  or  whether  the  license  must  be 
registered  anew  in  each  county  where  the  holder  does  any 
dental  work.  The  statutes  generally  provide  that  if  the  license 
is  not  registered  within  the  time  prescribed,  the  license  shall 
be  forfeited.  Statutes  containing  this  provision  usually  pro- 
vide that  a  duplicate  may  be  obtained,  in  some  cases  with 
and  in  others  without  an  additional  fee.  *  *  *  j^  view 
of  the  uncertainty  of  the  law  in  this  regard  under  the  phrase- 
ology of  many  of  the  statutes,  and  the  serious  consequences 
involved  in  its  breach,  a  dentist  should  always  register  in 
each  county  where  he  does  any  dental  work,  unless  the  statute 
clearly  provides  that  registry  in  one  place  entitles  him  to  prac- 
tice anywhere  in  the  State." 

"4.  Revocation  of  License — Most  of  the  statutes  regu- 
lating the  practice  of  dentistry  provide  for  revocation  of  the 
dentist's  license.  In  some  of  the  statutes  the  grounds  on 
which  the  license  may  be  revoked  are  specifically  set  out  in 
the  statute." 

"In  others  the  grounds  of  revocation  are  not  set  out  in 
detail,  but  it  is  provided  generally  that  it  may  be  revoked 
for  dishonorable  or  unprofessional  conduct.  Under  similar 
statutes  in  relation  to  physicians,  it  has  been  held  in  the 
United  States  that  'unprofessional'  means  'dishonorable,'  and 
does  not  refer  to  matters  of  professional  ethics  only ;  and  that 
a  mere  breach  of  professional  ethics,  such  as  advertising,  etc., 
is  not  ground  for  revoking  a  license."^ 

<.*  *  *  Jyi  some  states  such  statutes  have  been  held  to 
be  unconstitutional  and  void  for  uncertainty."-     *     *     * 

"Some  statutes  provide  that  the  license  to  practice  may  be 
revoked  for  'fraud,  deceit,  or  misrepresentation'  in  the  prac- 
tice of  dentistry.  Such  a  statute,  it  has  been  held,  is  not  in- 
valid for  uncertainty."     *     *     * 

"A  license  once  granted  cannot  be  revoked  without  an 


'See  State  v.  State  Medical  Examining  Board,  32  Minn.,  324  (1884). 
"Czarra  v.   Board  of  Medical  Supervisors,  25  App    Cas.   (D.   C.) 
443  C1905). 


194  DENTAL  JURISPRUDENCE. 

Opportunity  given  the  holder,  by  timely  notice,  to  appear 
and  defend  himself  against  the  charges  preferred  against 
him. 

"But  the  decision  of  the  board,  after  a  proper  hearing, 
that  the  dentist  is  guilty  of  professional  misconduct  is  not 
reviewable  by  a  court,  at  least  if  there  is  any  evidence  on 
which  the  Dental  Board  could  reasonably  hold  that  the  den- 
tist had  been  guilty  of  such  conduct."^ 

"5.  Efifect  of  Fulfillment  of  Requirements — If  the  appli- 
cant for  the  right  to  practice  dentistry  has  fulfilled  the  legal 
requirements,  he  is  entitled  to  practice,  and  it  is  immaterial, 
as  far  as  his  right  to  practice  is  concerned,  how  well  he  has 
met  the  tests  prescribed  by  the  law.  The  ability  shown  by 
him,  however,  in  meeting  these  tests  may  subsequently  be- 
come of  great  importance  to  him.  In  the  case  of  Wilkins  v. 
Ferrell,-  (Texas)  a  dentist  was  sued  by  a  patient  for  malprac- 
tice. The  dentist  had  offered  evidences  to  prove  his  skill  and 
learning  in  his  profession.  The  plaintiff  thereupon  offered  to 
prove  by  two  members  of  the  board  of  dental  examiners  that 
the  defendant,  when  he  was  examined  for  his  license  a  year 
previous,  was  unable  to  answer  questions  propounded  to  him 
in  anatomy,  physiology  and  chemistry ;  that  he  could  not  ex- 
plain what  the  superior  and  inferior  maxillary  bones  were, 
and  said,  in  treating  an  exposed  pulp,  he  'would  kill  the  damn 
thing' ;  that  he  could  not  tell  the  number  of  bones  in  the 
head  or  skull,  and  could  not  name  the  nerves  in  the  head  and 
face.  The  defendant  objected  to  the  court's  allowing  this 
evidence  to  go  to  the  jury.  The  court,  however,  admitted 
it  and,  on  appeal,  the  supreme  court  held  that  the  lower  court 
was  right."* 

RELATION    BETWEEN    THE    DENTIST    AND    HIS    PATIENT. 
TIME   AT   WHICH    THE  RELATION    COMMENCES. 

"The  mere  opening  of  the  dentist's  office  for  practice,  or 
the  display  of  his  name-plate  does  not  create  any  duty  on  the 
part  of  the  dentist  or   impose  any  obligation  upon   him   to 


'Hill  V.  Clifford,  Eg.  (1907)  and  others, 
no  Tex.  Civ.  App.,  231  (1895). 
♦Page  39. 


STATUS  OF  THE  DENTIST.  195 

accept  patients.     He  is  no  more  required  to  accept  any  per- 
son who  comes  to  him  as  a  patient  than  is  a  physician.^ 

"It  is  not  until  he  accepts  a  person  as  a  patient  that  his 
duties  and  the  corresponding  obligations  arise. "- 

THE  CONTRACT  OF  EMPLOYMENT. 

The  relation  between  the  dentist  and  his  patient  is,  in 
general,  in  the  nature  of  a  contract  between  them.  This  con- 
tract may  be  written  or  oral,  expressed  or  implied ;  and  in 
our  law  there  is  no  special  sanctity  or  obligation  to  written 
contracts  over  oral  ones,  and  implied  contracts  are  as  binding 
between  the  parties  as  expressed  ones.  The  greatest  advan- 
tage of  a  written  contract  is  that  its  terms  are  more  easily 
proven,  and  there  is  less  opportunity  for  variance  of  under- 
standing, forgetfulness,  or  misrepresentation. 

The  nature  of  a  contract  for  services  makes  it  subject  to 
the  implied  condition  that  both  of  the  parties  shall  be  in  such 
a  state  of  health  as  to  be  able  to  fulfill  their  contract  at  the 
appointed  time.'^  If  too  ill  to  keep  an  appointment,  therefore. 
a  patient  must  be  excused.  Likewise,  the  dentist,  if  too  ill 
to  work,  the  patient,  however,  in  that  case  may  go  to  another 
dentist  if  necessary  or  if  he  chooses  to  do  so. 

''2.  Contracts  Required  to  be  in  AVriting. — By  force  of 
a  statute  passed  in  England  in  1677,  known  as  the  Statute 
of  Frauds  and  Perjuries,  because  it  was  intended  to  prevent 
the  commission  of  frauds  and  perjuries,  certain  contracts 
unless  in  writing  could  not  be  enforced  at  law  unless  there 
had  been  part  payment  under  them,  etc. 

"The  statute  provided  that  'no  contract  for  the  sale  of 
any  goods,  wares  and  merchandises  for  the  price  of  ten  pounds 
sterling  or  upward,  shall  be  allowed  to  be  good  except  the 
buyer  shall  accept  part  of  the  goods  sold  and  actually  receive 
the  same,  or  give  something  in  earnest  to  bind  the  bargain, 
or  in  part  payment,  or  that  some  note  or  memorandum  in 
writing  of  said  bargain  be  made  and  signed  by  the  parties 


•Becker  v.  Jamski,  15  N.  Y.  Suppl.,  675  (1891). 
'Huky  V.  Eddingfield.  156  Ind..  416  (1900). 
'Powell  V.  Newell.  95  Minn..  406  (1894). 


196  DENTAL  JURISPRUDENCE. 

to  be  charged  by  such  contract,  or  their  agents  thereto  law- 
fully authorized.'  This  statute  is  still  in  force  in  England 
and  a  substantially  similar  statute  is  in  force  in  all  the  Amer- 
ican States  except  Alabama,  Arizona,  Delaware,  Illinois, 
Kansas,  Kentucky,  Louisiana,  New  Mexico,  North  Carolina, 
Ohio,  Pennsylvania,  Rhode  Island,  Texas,  Tennessee,  Vir- 
ginia and  West  Virginia.  In  the  other  states,  where  the 
statute  is  in  force,  the  amount  prescribed  by  the  statute  varies 
in  the  different  states." 

Probably  the  only  application  this  statute  would  have 
in  dental  practice  is  in  relation  to  artificial  teeth  and  the 
decisions  in  the  dififerent  cases  and  in  different  states  do  not 
agree. 

"In  the  case  of  Lee  v.  Grifhn,^  the  plaintiff,  a  dentist,  in 
pursuance  of  an  oral  order  from  his  patient,  prepared  a  model 
for  her  mouth  and  made  for  her  two  sets  of  false  teeth.  After 
the  teeth  were  finished  and  she  was  notified  of  the  fact,  she 
died  before  she  could  have  the  teeth  fitted.  The  dentist  sued 
her  estate  through  her  executor  for  £21,  the  compensa- 
tion she  had  agreed  to  pay  for  the  teeth.  If  this  transac- 
tion was  a  'sale'  of  teeth  by  the  dentist,  then  since  the  con- 
tract had  not  been  put  in  writing,  he  was  not  entitled  to  re- 
cover under  the  statutes.  If  it  was,  on  the  other  hand,  a 
contract  to  do  a  certain  piece  of  work,  to  perform  certain 
services,  then  the  plaintiff  was  entitled  to  recover,  for  the 
statute  only  applies  to  'sales.' 

"The  court  held  the  transaction  to  be  a  'sale'  and  refused 
to  allow  a  recovery.  The  court  laid  down  the  following  test 
of  when  a  transaction  is  a  sale,  and  required  to  be  in  writ- 
ing: 'If  the  contract  be  such  that,  when  carried  out,  it  would 
result  in  the  sale  of  chattel,'  it  is  a  sale ;  'but  if  the  result  of 
the  contract  is  that  the  party  has  done  work  and  labor  which 
ends  in  nothing  that  can  become  the  subject  of  a  sale,'  the 
party  can  recover  whether  the  contract  is  in  writing  or  not. 
The  rule  of  this  case  has  been  adopted  in  Canada  and  Mis- 
souri.^ Tests  different  from  the  above  and  differing  from 
each   other  have  been   adopted    in    the    different   American 


*Eng.,  Best  and  Smith,  272. 
'WilHston,  Sales,  Sec.  54. 


STATUS  OF  THE  DENTIST.  197 

States.  It  is  believed  that  under  none  of  them  except  in 
Missouri,  would  a  contract  by  a  dentist  to  make  a  set  of 
teeth  be  required  to  be  in  writing.     *     *     *" 

In  any  case,  "If  the  teeth  were  received  and  accepted  by 
the  patient,  or  if  all  or  part  of  the  price  had  been  paid/  the 
contract   would   be   binding   though   not   in   writing." 

"Even  when  in  the  above  cases  the  contract  must  be  in 
writing,  all  the  terms  of  the  contract  need  not  appear  in  the 
writing.  It  is  sufficient  if  the  names  of  the  parties,  the  price 
and  the  substance  of  the  agreement  appear  in  the  writing, 
and  it  is  signed  by  the  party  who  is  being  sued.     *     *     *" 

"Another  contract  that  the  law  will  not  enforce  unless 
it  is  in  writing,  is  the  contract  of  one  person  to  answer  for 
the  debt  or  default  of  another." 

If  a  patient  is  sent  to  a  dentist  by  a  person  who  promiess 
to  pay  the  bill  such  promise  must  be  in  writing  unless  the 
patient  is  one  for  whose  support  the  one  sending  is  legally 
responsible,  as  a  wife,  child  or  ward. 

"3.  Express  Contracts. — The  dentist  may  enter  into  an 
express  contract  with  his  patient.  Such  contracts  are  becom- 
ing more  common  than  formerly."  An  express  contract  is 
made  when  the  terms  of  it  are  expressed  and  agreed  upon 
between  the  parties.-  It  is  usually  for  certain  specified  oper- 
ations or  services  to  be  performed,  and  for  a  specified  fee,  or, 
in  many  cases,  a  minimum  and  a  maximum  fee  may  be  named, 
in  view  of  the  fact  that  the  worth  of  many  operations  cannot 
be  known  by  the  dentist  beforehand  except  approximately. 
Such  contracts  may  be,  but  need  not  be  in  writing  unless  it 
be  of  the  sort  required  by  law  to  be  in  writing,  as  described 
previously.  Of  course  a  dentist  must  fulfil  such  contracts  in 
accordance  to  the  terms  of  them,  no  matter  how  much  of 
extra  or  unexpected  time  or  trouble  may  be  required. 

"4.  Implied  Contracts. — Most  contracts  between  den- 
tists and  their  patients  are  not  express,  but  are  so-called  im- 
plied contracts.  The  patient  seats  himself  in  the  dentist's 
chair,  the  dentist  examines  his  teeth,  makes  notes  of  what 


^Some  states  require  this  payment  to  be  at  the  time  the  contract  is 
made  if  payment  is  relied  on  to  make  the  contract  valid. 


198  DENTAL  JURISPRUDENCE. 

work  is  needed,  informs  the  patient  of  the  extent  of  such 
work  more  or  less  perfunctorily,  and  proceeds  to  perform  the 
necessary  work  without  informing  the  patient  of  the  length 
of  time  necessary  to  complete  it,  the  nature  of  the  materials 
he  proposes  to  use,  how  skillfully  he  will  perform  it,  whether 
it  will  have  the  desired  result,  how  long  it  will  last,  what  he 
will  charge  for  it  or  when  payment  will  be  due.  In  such  a 
case  as  this  where  one  or  more  of  the  terms  of  the  contract 
are  not  expressly  agreed  on  by  the  parties,  the  law  implies 
a  contract  between  them.     *     *     *" 

Implied  contracts  involve  similar  obligations  upon  both 
parties  as  express  contracts,  and  may  be  legally  enforced. 
Rehfus  gives  this  rule  of  law  in  regard  to  them. 

"The  presumption  in  regard  to  implied  contracts  is  that 
agreements  and  stipulations  are  supposed  to  have  been  made 
between  the  parties  such  as  fair  and  honest  men  ought  to  have 
made  under  like  circumstances." 

"5.  Delegation  of  the  Contract. — It  is  a  general  rule  of 
law  that  a  contract  to  perform  personal  services  cannot  be 
delegated  to  another  by  the  person  contracting  to  perform 
them." 

Of  course  it  can  be  done  by  the  consent  of  the  parties. 

"6.  Contracts  Made  or  to  be  Performed  on  Sunday. — 
Since  1677  in  England,  and  now  generally  in  this  country, 
work  done  in  a  person's  ordinary  business  or  calling  is  for- 
bidden by  statute,  and  contracts  therefor  are  unenforceable. 
An  exception  is,  however,  that  if  the  work  done  be  a  'work 
of  necessity,'  the  person  performing  the  work  may  recover 
for  his  services.  It  has  been  held  by  the  courts  that  the  work 
of  a  physician  in  healing  the  sick  was  a  work  of  necessity." 

Some  dental  work  would  undoubtedly  be  so  regarded,  but 
the  larger  part  of  ordinary  dental  services  probably  not. 
Services  rendered  to  relieve  pain,  or  to  prevent  harm  likely 
to  happen  by  a  delay  till  the  next  day  would  be  "work  of 
necessity." 

GIFTS  BY  PATIENT  TO  DENTIST. 

"The  relation  between  the  dentist  and  patient,  like  that 
between  physician  and  patient,  is  a  confidential  one.     It  has 


STATUS  OF  THE  DENTIST.  199 

been  held,  however,  that  there  is  nothing  in  the  latter  rela- 
tion that  forbids  the  acceptance  of  a  gift  by  the  physician 
from  his  patient.  The  same  rule  would  apply  in  the  case  of 
a  gift  by  the  patient  to  his  dentist." 

LIABILITY  OF  PATIENT  TO  DENTIST. 

Mikell  goes  minutely  into  detail  under  each  of  the  head- 
ings of  this  chapter.  A  briefer  statement  or  short  quota- 
tions will  answer  our  purpose  in  most  instances. 

LIABILIT\'    FOR    BREACH    OF    CONTRACT. 

If  a  patient  fail  to  fulfil  his  contract  with  the  dentist, 
(whether  it  be  an  express  contract  or  an  implied  contract) 
he  is  liable  for  such  damages  as  the  dentist  may  suffer  in  con- 
sequence. If  the  breach  of  contract  is  a  failure  to  pay  the 
bill  the  amount, of  liability  is  the  price  agreed  upon,  or  if 
there  were  no  express  contract  then  the  amount  of  the  bill 
rendered  if  it  be  reasonable,  and  in  case  of  a  law-suit,  the 
reasonableness  of  a  bill  is  always  for  the  jury  to  determine, 
upon  the  evidence  submitted  to  them,  "and  they  may  take 
into  consideration  the  ability  of  the  practitioner  and  his  stand- 
ing in  the  profession."^ 

*"In  some  jurisdictions  it  is  held  that  the  financial  abil- 
ity of  the  patient  should  be  considered  in  estimating  the 
worth  of  the  services. "- 

"In  other  jurisdictions  a  contrary  rule  obtains."" 

A  breach  of  contract  may  relate  to  other  matters  than 
compensation,  oftenest,  probably,  to  a  failure  to  keep  appoint- 
ments. In  these  cases  the  dentist  has  a  rightful  claim  for 
the  amount  of  damage  he  has  sustained.  He  cannot  claim 
pay  for  the  work  he  would  have  done,  for  he  has  not  done 
the  work.  If  he  is  idle  in  consequence  during  the  appointed 
time  he  may  claim  the  amount  he  would  have  charged  if  the 
patient  had  kept  the  appointment.  If  he  is  employed  for  an 
equal  compensation  he  may  not  charge  anything,  for  he  has 


'Heintz  v.  Cooper  (Cal),  47  Pac,  360  (1896). 
*Mikell.  p.  52. 

^Succession  of  Haley,  5  La.  Ann.,  840  (1898). 
'Robinson  v.  Campbell,  47  Iowa,  625  (1878). 


200  DENTAL  JURISPRUDENCE. 

sufifered  no  loss.  If  he  is  employed  for  a  less  remuneration 
than  he  would  have  received  he  may  charge  the  difference. 
The  most  satisfactory  plan  is  to  announce  on  the  appoint- 
ment card  that  if  appointments  are  not  kept  a  reasonable 
charge  will  be  made  unless  notice  is  received  the  day  before ; 
or,  unless  timely  notice  has  been  given ;  or  a  definite  sum  may 
be  named.  That  would  eliminate  all  controversy  as  to  what 
the  lost  time  was  worth  or  what  the  dentist  did  with  it. 

Rehfuss  cites  two  cases  of  claims  for  missed  appoint- 
ments, both  of  which  were  allowed.  The  first  that  of  Dr. 
D.  D.  Smith  of  Philadelphia,  Magistrate's  Court  No.  9,  July 
11,  1891.  The  patient  desired  the  roots  of  some  teeth  be 
filled  with  gold,  which  the  doctor  refused,  deeming  it  im- 
practical in  that  case,  whereupon  the  patient  left  the  chair, 
and  also  failed  to  keep  a  subsequent  appointment  which  had 
been  made.  In  the  other  case,  "A  dentist  brought  suit  against 
a  lady  in  a  Chicago  court  in  1875.  The  plaintiff  charged  that 
the  defendant  made  a  series  of  appointments  with  him  and 
failed  to  keep  them.  His  claim  was  for  eighty  dollars,  charg- 
ing at  the  rate  of  two  dollars  and  fifty  cents  per  hour.  The 
plaintiff  secured  judgment  for  the  whole  amount.  Rehfuss 
refers  in  this  case  to  the  Dental  Cosmos  ,Vol.  XIX,  p.  110. 


CHAPTER   XVI. 

LIABILITY    FOR    COMPENSATION — WIVES,    MINORS,    PARENTS, 
GUARDIANS,   ETC. — FOR  BREACH   OF  CONTRACT. 

The  most  important  part  of  this  subject  has  been  already 
covered  under  the  previous   head. 

If  a  patient  has  just  ground  to  suppose  the  services  of 
the  dentist  are  to  be  gratuitous,  of  course  no  claim  for  com- 
pensation can  afterwards  be  made.  The  legal  question  is 
stated  by  the  court  in  Prince  v.  McRae/  "Whether  the  plain- 
tiff's services  shall  be  deemed  a  gratuity  or  constitute  a  claim 
for  compensation  must  be  determined  by  the  common  under- 
standing of  both  parties.  If  they  were  intended  to  be  and 
were  accepted  as  a  gift  or  act  of  benevolence,  they  cannot, 
at  the  election  of  the  plaintiff,  create  a  legal  obligation  to  pay. 
But  their  character  is  not  controlled  by  the  unexpressed  and 
revocable  intentions  of  the  plaintiff." 

"A  dentist  has  no  authority  to  call  in  a  consulting  den- 
tist (or  physician)   without  the  consent  of  the  patient." 

If,  however,  the  patient  receives  the  services  of  the  con- 
sultant without  objection,  or  requests  or  consents  that  he  be 
called,  he  is  of  course  liable  for  the  consultation  fee. 

"If  the  dentist  call  in  another  dentist  or  a  physician  to 
assist  him,  as  to  administer  ether,  or  the  like,  without  the  re- 
quest of  the  patient,  the  dentist  is  in  the  first  instance  liable 
to  such  assistant  for  his  services. "- 

In  such  case,  however,  he  can  carry  over  the  charge  to 
the  patient  in  his  own  bill  for  services. 

2.     What  Persons  are  Liable — Liability  of  Infants. 

'Tn  general  the  contract  of  an  infant,  i.  e.,  a  person  under 
twenty-one  years  of  age  is  not  binding.  The  law,  however, 
has  made  an  exception  to  the  rule  in  the  case  of  necessaries. 
If  an  infant  not  living  at  home  under  the  care  and  support 
of  his  parents,  makes  a  contract    for    what    the    law    considers 


•84  N.  C,  674  (1881). 

"Fitzgerald  v.  Hanson,  16  Montana,  474  (1895). 


202       '  DENTAL  JURISPRUDENCE. 

a  necessary,  the  infant  is  bound  by  such  contract,  and  having 
obtained  the  benefit  of  it  must  pay  for  it." 

The  preceding  has  practical  appHcation  chiefly  to  minors 
having  money  or  property  of  their  own  or  to  claims  against 
them  after  they  become  of  age  for  services  rendered  during 
their  minority.  There  is  some  confusion  and  diversity  of  au- 
thorities as  to  the  power  of  a  minor  living  at  home  to  make 
contracts  for  himself.  In  one  case  cited  a  minor  was  sued  for 
services  and  it  was  shown  that  he  lived  at  home  and  paid 
his  wages  to  his  father,  who  was  very  poor  and  wholly  un- 
able to  pay  the  bill.  It  was  held  that  the  father  was  the 
only  one  against  whom  a  claim  for  payment  could  be  made. 
Two  decisions  or  authorities  state  the  two  views. 

"In  Murphy  v.  Holmes^  the  Supreme  Court  of  New  York 
states  that  rule  as  follows :  'The  theory  upon  which  an  in- 
fant is  made  liable  for  necessaries  is  that  they  have  been 
furnished  and  were  necessary,  and  that  the  person  standing 
in  the  relation  of  parent  has  not  the  ability  to  respond  for 
the  amount  thereof.  Where  they  have  such  ability,  no  lia- 
bility can  attach  to  the  infant.'  " 

And  "Tyler^  states  the  rule  thus :  'An  infant  when  at 
home  under  the  care  of  his  father,  and  supported  by  him, 
cannot  be  made  liable  for  necessaries.'  " 

LIABILITY   OF    PARENT. 

Brothers,  in  his  book,^  states  it  in  this  way:  "At  com 
mon  law  the  liability  of  a  father  for  the  support,  mainten- 
ance and  education  of  his  minor  child,  while  recognized,  was 
not  well  defined  and  amounted  to  little  more  than  an  imper- 
fect unenforcible  obligation.  The  duty  was  always  conceded, 
but  the  manner  of  its  discharge  was  exclusively  within  the 
discretion  of  the  parent.  The  party  who  voluntarily  supplied 
the  wants  of  a  minor  had  no  legal  claims  against  the  parent, 
and  all  that  he  did  in  this  respect  was  at  his  own  risk,  unless 
he  had  the  express  promise  of  the  father  to  remunerate  him. 


^87  App.  Div.  N.  Y.  (1903),  li. 
^Infancy  and  Coverture,  2nd  Ed.,  108. 
'Dental  Jurisprudence,  by  E.  B.  Brothers,  p.  100. 


LIABILITY  FOR  COMPENSATION.  203 

or  the  circumstances  were  such  that  a  promise  of  that  char- 
acter would  reasonably  be  implied.  In  the  absence  of  special 
legislation,  this  obligation  remains  the  same  as  at  common 
law,  and  the  general  rule  prevails  that  where  a  person  fur- 
nishes necessaries  to  a  minor  without  authority  from  the  par- 
ent, he  does  so  at  his  peril  and,  in  order  to  recover  from  the 
parent,  he  must  show  by  a  preponderance  of  the  evidence 
either  an  express  authority  or  circumstances  from  which  such 
authority  may  be  implied.  The  parent  is  to  be  the  judge  of 
the  wants  of  his  child  and  of  his  ability  to  supply  them,  and 
the  extent  to  which  he  shall  respond  to  this  obligation  and 
when  no  express  authority  has  been  given  to  the  child  to 
bind  the  parent,  it  devolves  upon  the  party  supplying  such 
necessities  to  show  the  neglect  or  refusal  of  the  parent  to 
provide  the  same." 

MikelP  states  the  same  conclusion  in  fewer  words :  "In 
order  to  hold  a  parent  liable  for  dental  services  rendered  to 
his  minor  child,  there  must  be  shown  either  an  express  con- 
tract by  the  father  to  pay  for  such  services,  or  circumstances 
from  which  a  contract  by  the  father  can  be  inferred.'  ' 

In  most  cases  when  minor  children  come  to  the  den- 
tist without  either  parent  accompanying  them,  they  are  to 
be  regarded  as  the  "special  agents"  of  the  parent  for  making 
the  necessary  contract  for  services  (either  express  or  im- 
plied contracts). 

Brothers-  states  it  in  this  way :  "Where  the  child  has  au- 
thority to  bind  the  parent  it  is  usually  in  the  nature  of  a  spe- 
cial agency,  and  the  party  dealing  Avith  the  minor  is  bound 
to  know  the  extent  of  that  authority." 

Mikell  cites  this  case  in  illustration:  "In  Dumser  v. 
Underwood,^  Underwood,  a  dentist,  sued  Dumser  for  $19.00 
for  dental  services  performed  for  Dumser's  minor  daughter. 
The  daughter  had  informed  her  father  that  her  teeth  needed 
attention,  whereupon  he  told  her  to  go  to  Dr.  Whedon,  the 
family  dentist,  and  ask  him  to  examine  her  teeth  and  make 


^Mikell's    Dental   Jurisprudence,    p.    57. 
'Brothers'   Dental   Jurisprudence,   p.    101. 
=■168  111.  App.,  121   (1896). 


204  DENTAL  JURISPRUDENCE. 

an  estimate  of  the  cost  of  the  work.  This  she  did  and  re- 
ported to  her  father  that  the  cost  as  estimated  by  Dr.  Whedon 
would  be  $10.00.  The  father  then  told  her  to  have  Dr.  Whedon 
do  the  work.  The  daughter,  however,  went  instead  to  Dr. 
Underwood,  who  did  the  work,  for  which  he  charged  $19.00. 
It  was  admitted  that  $19.00  was  a  reasonable  sum  for  the 
work.  On  the  refusal  of  the  father  to  pay,  Underwood  sued 
him  for  the  amount  of  his  bill.  The  court  having  ruled  that 
the  work  was  not  a  'necessary,'  Underwood  next  contended 
that  as  Dumser  had  given  his  daughter  authority  to  have 
dental  work  performed,  he  had  made  her  his  agent  to  pro- 
cure such  work,  and  was  therefore  liable  for  the  cost  of  the 
same.  The  court  said :  'It  is  insisted  that  the  permission, 
thus  delegated,  clothed  her  with  such  apparent  authority  as 
to  render  him  liable  although  she  acted  contrary  to  his  priv- 
ate instructions. 

"This  contention  loses  sight  of  the  distinction  between 
general  and  special  agencies. 

"  'The  agency  in  this  case  was  special,  viz.,  to  have  the 
work  done  by  Dr.  Whedon.  A  special  agent  is  one  author- 
ized to  do  a  specific  act  in  respect  to  which  his  power  is  lim- 
ited. A  party  dealing  with  him  is  bound,  at  his  peril,  to 
ascertain  the  extent  of  his  authority.'  " 

"liability  of   husband — FOR   SERVICES   BEFORE    MARRIAGE. 

"Before  1870,  in  England,  when  a  woman  married,  all  her 
property  became  the  property  of  her  husband.  The  effect  of 
this  was  that  the  wife  could  not  be  liable  for  any  debts  con- 
tracted by  her  before  marriage,  for  after  she  became  a  wife 
she  had  no  property  with  which  to  pay  them.  As,  however, 
the  husband  on  the  marriage  became  the  owner  of  what  prop- 
erty the  wife  owned  before  marriage,  the  law  held  him  re- 
sponsible for  all  debts,  including  debts  for  dental  services, 
contracted  by  her  before  her  marriage."^ 

"In  1870  the  first  'Married  Woman's  Property  Act'  was 
passed  by  the  British  Parliament.  This  statute  was  amended 
by  the  Act  of  1874,  and  in  1882  these  two  acts  were  super- 


'Blackstone,   Comm.,  bk.    1,   chap.   IS,  p.   443. 


LIABILITY  FOR  COMPENSATION.  205 

seded  by  the  Act  of  1882.  This  act  radically  changed  the  law- 
existing  before  1870.  It  first  enacted  that  thereafter  the  wife, 
on  marriage,  should  continue  to  hold  all  the  property  that 
belonged  to  her  at  her  marriage  or  that  should  devolve  on 
her  after  her  marriage,  and  then  provided  that  thereafter  not 
only  should  the  wife  herself  be  liable  for  all  debts  contracted 
by  her  before  her  marriage  to  the  extent  of  her  separate  prop- 
erty, but  limited  the  liability  of  the  husband  for  such  ante- 
nuptial debts  of  the  wife  to  such  property  as  he  acquired 
through  his  wife."^ 

"Similar  statutes  are  in  force  in  the  United  States,  but 
as  they  differ  in  their  terms,  no  general  rule  can  be  laid  dowai 
as  to  the  effect  of  their  provisions  or  the  extent  of  a  married 
woman's  liability  for  her  contracts,  and  it  is  impossible  in  a 
work  of  this  character  to  attempt  to  treat  the  subject  for 
each  State  in  the  Union.     *     *     *" 

"For  Services  During  Marriage — Previous  to  the  enact- 
ment of  the  statutes  above  mentioned,  a  wife  was  no  more 
liable  generally  for  contracts  made  by  her  during  the  continu- 
ance of  her  married  state  than  by  contracts  made  by  her 
before  her  marriage.  But  while  the  husband  was  liable  for 
all  her  debts  contracted  before  marriage,  he  was  not  liable 
for  all  debts  contracted  by  her  after  marriage,  but  only  for 
debts  contracted  by  her  when  acting  as  his  agent,  or  under 
an  authority  from  him,  express  or  implied.  The  Married 
Woman's  Property  Acts  have  in  general  changed  the  law  so 
as  to  render  the  wafe  herself  liable  for  contracts  made  by 
her  on  her  own  account  during  the  marriage,  but  have  not 
altered  the  liability  of  the  husband.  He  remains  liable  on 
contracts  made  by  her  when,  and  only  when,  she  is  acting  as 
his  agent  in  making  the  contract." 

"The  agency  of  the  wife  may  be  shown  in  the  same  w^ay 
as  the  agency  of  any  other  person ;  by  actual  authority,  by 
a  ratification  of  the  contract,  or  by  a  recognition  of  similar 
contracts  made  by  her.  The  most  usual  cases  of  such  agency 
is   in    contracts   made   by   the   wife   for  necessaries.      If   the 


'Smith  on  Contracts,  337;  McQueen's  Husband  &  Wife,  71. 


206  DENTAL  JURISPRUDENCE. 

parties  are  living  together,  the  law  invests  her  at  the  mar- 
riage with  an  irrevocable  agency  to  pledge  his  credit  for  what- 
ever is  necessary  to  her  maintenance,  unless  he  provides  other 
means.     *     *     *" 

"For  Services  During  Separation — If  the  husband  and 
wife  are  not  living  together  the  presumption  is  that  she  has 
no  authority  to  bind  him  even  for  necessaries.  To  hold  her 
husband  liable  in  such  case,  it  must  be  shown  that  her  absence 
from  her  husband  was  for  some  cause  that  would  justify  her 
absence,  i.  e.,  that  it  was  not  due  to  fault  on  her  part." 

Mikell  has  several  pages  of  citations  of  cases  in  illustra- 
tion of  these  propositions,  and  a  few  other  minor  points 
which  it  is  not  necessary  to  quote  further. 

"Liability  of  Third  Persons — The  liability  arising  from 
the  family  relation  of  one  member  of  the  family  to  pay  for 
services  rendered  to  another  does  not  extend  beyond  the  cases 
of  father  and  child  and  husband  and  wife.  A  brother  is  not 
liable,  as  such,  for  services  rendered  to  a  brother,  even  though 
the  brother  for  whom  the  services  were  performed  was  insane 
at  the  time,^  nor  a  son-in-law  for  the  services  performed  for 
his  mother-in-law." 

"Liability  of  Employer — An  employer,  as  such,  is  not 
liable  to  pay  for  dental  services  rendered  to  his  employe  or 
servant."  Unless  he  has  expressly  agreed  to  pay  for  them 
or  has  paid  for  services  previously  rendered  for  the  same 
person. 

"Liability  of  County  or  State — For  Services  to  Paupers, 
etc. — There  are  in  most,  if  not  all,  of  our  states,  laws  making  it  the 
duty  of  the  proper  county  officers  to  secure  medical  attendance 
for  the  paupers  and  the  insane  of  the  county,  and  to  persons 
confined  in  jails  and  prisons,  at  the  expense  of  the  county  or  the 
State.  Medical  attendance  has  been  held  to  include  surgical  serv- 
ice,- and  there  can  be  no  doubt  that  such  statutes  would  be  con- 
strued to  include  at  least  such  dental  services  as  were  necessary 
for  the  health  of  the  paupers,  and  that  the  dentist  performing 
such  services  could  recover  against  the  county  for  the  same.     If 


'Smith  V.  Watson,  14  Vt.,  332  (1842). 

'Clinton  Co.  v.  Ramsey,  30  111.  App.,  577  (1886). 


LIABILITY  FOR   COMPENSATION.  207 

his  compensation  was  not  fixed  by  his  contract  with  the  proper 
officers,  he  should  recover  the  reasonable  value  of  his  services."^ 

"In  order  to  recover  against  the  county,  however,  the 
dentist  must  show  that  the  person  at  whose  request  he  per- 
formed the  services  was  authorized  by  law  to  charge  the 
county  for  payment  for  the  services  rendered. "- 

"If,  however,  an  officer  of  the  county  engage  for  such 
services  without  the  requisite  authority  to  bind  the  county, 
he  is  himself  personally  liable  to  the  dentist  for  the  value  of 
the  services."^ 

"For  Services  at  Coroner's  Inquest — A  coroner  has  au- 
thority to  pledge  the  county  of  which  he  is  an  officer  for  the 
compensation  for  all  auxiliary  services  which  are  necessary 
to  the  proper  execution  of  his  office,  and  which  he  could  by 
no  other  means  command." 

It  would  be  seldom  that  a  dentist  would  be  called  for 
any  other  services  than  as  a  witness.  Oftenest,  perhaps,  as 
an  expert  witness  to  assist  in  an  identification  by  means  of 
the  teeth,  and  his  compensation  in  such  cases  would  be  in 
the  nature  of  witness  fees.  The  fees  of  an  expert  witness 
should  be,  but  are  not  ahvays,  greater  than  those  of  a  common 
witness. 

"3.  Liability  for  Services  of  Unlicensed  Dentist — It 
seems  that  to  entitle  the  dentist  to  recover  compensation  for 
his  services,  he  must  show  affirmatively  his  compliance  with 
the  law  regulating  the  practice  of  dentistry.  His  right  to 
practice  will  not  be  presumed,  even  from  the  fact  that  he 
has  been  practicing  for  a  long  time."* 

Some  dental  laAvs  expressly  provide  that  illegal  practi- 
tioners cannot  recover  for  their  services,  while  others  only 
state  that  it  shall  be  unlawful  to  practice  until  certain  specified 
requirements  have  been  fulfilled.  The  difference  is  immate- 
rial ;  in  neither  case  can  an  illegal  or  unlicensed  practitioner 
collect  for  his  services  by  a  suit  at  law.     If  a  bill  is  contested 


'See  Tucker  v.  Virginia,  4  Nev.,  20  (1868). 

'Bay  V.  Cook,  22  N.  J..  L.  343  (1850). 

'Ibid. 

*See  North  Chicago  St.  Rv.  v.  Cotton,  140  111.,  486  (1892). 


208  DENTAL  JURISPRUDENCE. 

on  this  ground,  in  most  States  the  burden  of  proving  that  the 
dentist  is  legally  disqualified  is  upon  the  patient.  "Some 
States,  however,  hold  that  since  the  possession  of  a  license  is 
a  matter  peculiarly  within  the  knowledge  of  the  person  claim- 
ing to  possess  it,  the  burden  of  proving  such  possession  is 
on  the  dentist."^ 

These  are  the  essential  matters.  Mikell  cites  a  number 
of  cases  and  mentions  a  number  of  details  covering  more  than 
three  pages. 

"4.  Effect  of  Malpractice  on  Liability — In  a  suit  by  a 
dentist  for  remuneration  for  services  rendered,  the  patient 
may  successfully  defend  by  showing  that  in  rendering  the 
services  for  which  compensation  is  demanded,  the  dentist 
was  guilty  of  malpractice."^ 

"In  some  states  it  is  held  that  if  the  patient  proves  facts 
which  amount  to  malpractice  in  the  services  for  which  re- 
muneration is  claimed,  the  defense  is  complete  and  goes  to 
the  whole  claim,  and  that  the  dentist  can  recover  no  part  of 
his  charges,  but  forfeits  all  right  to  compensation.^  In  other 
States,  however,  it  is  held  that  though  in  an  action  to  recover 
for  services  the  patient  may  defend  on  the  ground  of  malprac- 
tice in  rendering  the  services,  that  proof  of  malpractice  will 
only  be  conclusive  so  as  to  prevent  recovery  of  the  whole 
claim  if  the  malpractice  was  such  as  to  render  the  services 
useless,  or  to  make  the  damage  suffered  by  the  patient  equal 
to  or  greater  than  the  value  of  the  services  or  the  amount 
due  under  the  contract;  if  the  injury  done  to  the  patient  is 
not  equal  to  the  value  of  the  services  or  the  amount  due 
under  the  contract,  the  dentist  should  recover  the  difference."* 

"5.  When  Compensation  Is  Due — When  the  contract 
between  the  dentist  and  his  patient  provides  a  definite  date 
for  payment  for  the  dentist's  services,  payment  is,  of  course, 


>Dow  V.  Haley,  30  N.  J.  L.,  354  (7863)  ;  Cooper  v.  Griffin,  13  Ind. 
App.,  212  (1895);  Adams  v.  Stuart,  5  Harr.  Del.,  144  (1849). 

'Brukman  v.  Kursheedt,  84  N.  Y.  Supp.,  575  (1903). 

'Abbott  V.  Mayfield,  8  Kan.  App.,  387  (1899)  ;  Patten  v.  Wiggin. 

'Whitesell  v.  Hill,  101  Iowa,  629  (1897);  Schofen  v,  Baldwin,  83. 
Hun.  N.  Y.,  234  (1894);  Piper  v.  Menifee,  12  B.  Mon.  Ky..  465  (1851). 
51  Me.,  594  (1862). 


LIABILITY  FOR  COMPENSATION.  209 

due  on  that  date,  and  on  demand  for  payment  and  refusal 
thereof,  suit  for  payment  may  begin  immediately." 

"If  no  time  for  payment  is  fixed  by  the  parties,  the  law 
implies  that  the  patient  has  promised  to  pay  as  soon  as  the 
services  are  performed." 

"Where  it  is  the  custom  to  send  bills  at  certain  times,  as 
monthly  or  quarterly,  if  the  patient  knows  of  such  custom, 
and  the  circumstances  show  that  it  was  understood  by  the 
parties  that  the  patient  was  not  to  pay  until  such  time  arrived, 
he  cannot  be  sued  until  such  time.  The  mere  fact,  however, 
that  it  is  the  custom  of  the  dentist  to  send  bills  to  his  patients 
at  certain  intervals,  as  monthly  or  quarterly,  will  not  be  con- 
strued as  an  agreement  with  the  patient  to  extend  credit  to 
him  until  the  customary  time  of  sending  bills  has  arrived.  In 
the  absence  of  other  circumstances  showing  an  agreement  to 
postpone  payment,  the  dentist  may  demand  payment  as  soon 
as  the  service  is  rendered.     *     *     *" 

"6.  Interest  on  Claim — Where  interest  is  allowed  gen- 
erally on  accounts,  it  seems  that  the  dentist  is  entitled  to 
interest  on  his  claim  for  services  from  the  time  such  claim 
became  due." 

In  the  case  cited  the  "statute  of  the  State  provided  that : 
"Accounts  of  merchants,  tradesmen  and  mechanics,  which  by 
custom  become  due  at  the  end  of  the  year,  should  bear  inter- 
est." The  court  held  that  "while  the  statute  did  not  mention 
physicians,  yet  they  were  clearly  within  the  equity  of  the 
statute.  *  *  *  *  The  reasoning  of  the  court  would,  of  course, 
make    the    act    applicable    to    the    account    of    a    dentist."^ 

"7.  Evidence  to  Establish  Liability — There  is  a  general 
rule  of  law  that  the  evidence  brought  before  the  court  to 
establish  a  claim  must  be  the  best  evidence  of  which  the  case, 
in  its  nature,  is  susceptible.  By  this  rule  is  meant  that  no 
evidence  shall  be  received  by  the  court  which  is  merely  sub- 
stitutionary in  its  nature,  so  long  as  the  original  evidence 
can  be  produced." 

"This   rule  has   nothing  to  do  with  the  amount  of  evidence 


M7  Ga.,  121   (1872). 


210  DENTAL  JURISPRUDENCE. 

necessary  to  establish  the  claim ;  nor  does  it  prevent  the  intro- 
duction of  merely  weaker  instead  of  stronger  proofs." 

"There  is  a  general  exception  to  this  rule,  viz. :  that  if 
the  production  of  the  best  or  primary  evidence  is  not  within 
the  power  of  the  party,  he  may  introduce  secondary  evidence 
to  prove  his  claim.  It  follows  from  the  rule  and  the  excep- 
tion that  if  the  contract  between  the  dentist  and  the  patient 
is  a  written  one,  as  in  some  cases  it  must  be,  to  be  enforcible, 
and  as  in  any  case  it  may  be,  the  written  contract  must  itself 
be  produced  or  its  absence  accounted  for  or  the  dentist  cannot 
recover  on  the  contract  as  such.  If  the  contract  is  in  posses- 
sion of  the  patient,  notice  to  produce  it  must  be  given  him ; 
if  it  is  lost,  proof  of  the  loss  must  first  be  given." 

"If  the  non-production  of  the  writing  is  properly  ac- 
counted for,  oral  evidence  of  its  terms  may  be  introduced  to 
prove  the  claim." 

"If  the  existence  of  the  writing  itself  be  disputed,  as 
where  the  dentist  sues  on  a  contract  which,  under  the  statute 
of  frauds  must  be  in  writing,  and  the  patient  denies  that  it 
was  ever  put  in  writing,  the  writing  itself  must  be  produced ; 
oral  evidence  cannot  be  offered  as  a  substitute  for  it,  even 
after  an  effort  to  prove  its  loss."* 

When  a  dentist  is  suing  for  compensation  for  services,  it 
may  often  be  difficult  or  impossible  for  him  to  swear  to  the 
various  items  of  the  services,  the  times  when  rendered  and 
the  charges  for  each,  without  reference  to  his  books  of  account. 
"At  first  sight,  his  books  of  account  might  seem  to  be  the 
best  evidence  possible  to  prove  his  claim.  It  must  be  remem- 
bered, however,  that  the  law  has  to  deal  with  the  dishonest, 
the  careless,  as  well  as  the  methodical,  and  to  frame  its  rules 
so  as  to  do  justice  in  the  majority  of  cases;  these  books  are 
kept  by  the  dentist  himself  and  not  even  seen  by  the  patient ; 
the  dentist  may  be  dishonest  and  make  any  entry  he  pleases; 
he  may  be  careless  and  make  an  error  in  his  entry;  he  may 
make  it  some  time  after  the  service  is  rendered  and  from  his 
imperfect  memory  of  what  the  service  was  and  its  value.     It 


*See  Greenleaf  Evidence,  sees.  82  to 


LIABILITY  FOR  COMPENSATION.  211 

is  evidence  made  by  himself,  for  himself.  These  and  other 
considerations  have,  to  some  extent,  governed  the  courts  in 
framing  rules  as  to  the  admissibility  of  books  of  account  in 
evidence." 

"In  the  first  place,  it  may  be  said  that  books  of  account 
may  be  used  in  court  for  two  purposes:  (1)  Merely  to  re- 
fresh the  mind  of  the  dentist  while  he  is  testifying  as  to  the 
services  and  charges  of  which  they  contain  a  record ;  (2)  As 
evidence  themselves  to  prove  the  claim.  The  general  rule  is 
that  books  of  account  may  be  used  by  the  witness  merely  to 
assist  his  memory,  in  any  event,  provided,  after  inspecting  it, 
he  can  testify  to  the  facts  from  his  own  recollection,  and  pro- 
viding the  writing  was  made  either  at  the  time  the  service 
for  which  suit  was  brought  was  performed,  or  shortly  after- 
ward."^ 

"When  the  books  of  account  are  used  not  merely  to 
refresh  the  memory  of  the  witness,  but  are  sought  to  be  intro- 
duced as  evidence  of  the  claim  itself,  the  rules  of  the  several 
States  are  not  uniform  as  to  their  admissibility.  In  general 
it  may  be  said,  however,  that  the  books  may  be  so  used  when 
it  is  shown  that  the  book  is  a  book  of  original  entries;  that 
the  entries  were  made  at  the  time  the  services  were  rendered 
and  by  the  person  whose  duty  it  was  at  the  time  to  make 
them ;  that  true  and  honest  accounts  were  kept ;  that  the  entry 
was  reasonably  specific  and  particular. "- 

Dentists  usually  keep  a  personal  record  of  operations  and 
other  services  for  each  individual  patient,  but  if  the  books  of 
record  and  account  are  to  be  used  in  court  it  is  desirable,  in 
addition  to  the  name  of  the  patient,  to  have  also  the  name 
of  the  father,  or  husband,  or  other  person  who  is  expected  to 
pay  the  bill,  if  it  is  not  to  be  collected  from  the  patient  indi- 
vidually. Dentists  are  in  the  habit  of  using  figures,  letters 
or  a  diagram  to  represent  the  several  teeth,  and  sometimes 
they  use  arbitrary  signs  or  marks  to  designate  the  various 
operations  upon  them  or   the  replacement  of  lost   teeth  by 


^Greenleaf  Evidence,  sec.  438. 

^Greenleaf  Evidence,  sec.  118;  also  Wigmore  Evidence,  sees  1546 
to  1562. 


212  DENTAL  JURISPRUDENCE. 

artificial  substitutes.  If  records  and  accounts  are  to  be  used 
in  court,  the  system  of  marks  and  signs  should  be  as  simple 
as  possible,  and  at  any  rate  easily  understood  by  a  jury  upon 
proper  explanation. 

"8.  Statute  of  Limitations — Statutes  exist  generally  pro- 
viding that  if  claims  are  not  sued  on  within  a  certain  time 
fixed  by  the  statute  after  they  become  due,  no  suit  can  be 
maintained  to  enforce  them.  The  general  statute  applicable 
to  other  simple  contracts  applies,  it  has  been  held,  to  con- 
tracts of  physicians  (except  in  Louisiana,  where  there  is  a 
special  statute  governing  contracts  of  physicians  and  attor- 
neys)^ and  would,  therefore,  be  held  to  apply  to  contracts  of 
dentists,  likewise.  The  period  of  limitation  differs  so  greatly 
in  different  states  that  no  general  statement  of  the  law  can 
be  given  here.  A  distinction  must  be  made,  however,  in  the 
different  kinds  of  contracts  a  dentist  may  make.  As  we  have 
seen,  certain  contracts  of  the  dentist  have  been  held  to  be 
contracts  of  sale,  e.  g.,  a  contract  to  make  a  set  of  false  teeth, 
while  other  contracts  are  contracts  for  services.  In  most 
States  contracts  for  sale  and  contracts  for  services  are  gov- 
erned by  different  statutes,  the  time  within  which  suit  must 
be  brought  being  different  in  the  two  cases.*     *     *" 

"The  time  prescribed  by  the  statutes  begins  to  run  against 
the  claim  from  the  day  the  claim  accrues,  i.  e.,  from  the  day 
on  which  payment  of  the  claim  could  be  legally  demanded. 

"In  general,  both  in  England  and  in  the  United  States, 
if  the  patient  makes  a  new  unconditional  promise  to  pay  the 
debt,  either  while  the  statute  is  running  against  the  claim,  or 
even  after  the  time  fixed  by  the  statute  has  actually  expired, 
the  cause  of  action  will  revive  and  the  right  to  sue  be  extended 
for  a  further  period  equal  to  the  time  prescribed  by  the  statute 
for  bringing  the  suit  in  the  first  instance.  So  an  acknowl- 
edgment of  the  debt,  from  which  a  promise  to  pay  will  be 
implied,  will  have  a  like  effect,  as  will  likewise  a  conditional 
promise  to  pay,  if  accompanied  by  a  sufficient  showing  that 
the  condition  on  which  the  promise  was  made  to  depend  has 

'25  cvc,  1032. 


LIABILITY  FOR  COMPENSATION.  213 

been  performed.  A  partial  payment  of  the  debt  by  the  patient 
will,  in  most  jurisdictions,  have  the  same  effect,  and  the  date 
of  such  payment  mark  the  time  from  which  such  statute  of 
limitation  begins  to  run  anew."^ 

LIABILITY  OF  DENTIST  TO  PATIENT  FOR  BREACH  OF  CONTRACT. 

A  contract,  whether  express  or  implied,  between  the 
dentist  and  his  patient  means  that  both  parties  assume  obli- 
gations and  duties,  and  a  failure  of  performance  by  either 
party  may  entitle  the  other  party  to  compensation  for  such 
actual  injury  or  loss  as  he  may  have  suffered  in  consequence.  If 
there  is  agreement  or  contract  for  a  series  of  operations  or 
other  services,  the  dentist  must  complete  the  services  agreed 
upon,  and  if  without  good  cause  he  refuses  to  do  so,  he  be- 
comes liable  for  damages,  but  the  patient  must  go  to  another 
dentist,  if  there  is  one  available,  to  complete  the  treatment 
or  he  can  recover  no  damages,  and  ordinarily  in  such  a  case 
the  damage  would  only  be  the  difference  between  the  com- 
pensation agreed  upon  and  that  actually  paid  to  the  dentist 
who  completed  the  work. 

Under  ordinary  circumstances  it  is  the  right  or  privi- 
lege of  a  patient  to  terminate  the  services  of  a  physician  or 
dentist  by  notifying  him  that  he  is  no  longer  required,  and 
paying  his  bill.  A  dentist  or  physician  must  have  the  cor- 
responding privilege  or  right  to  terminate  his  service  by  giv- 
ing his  patient  sufficient  notice  to  employ  someone  else.  If 
there  is  a  definite  agreement,  either  orally  or  in  writing,  the 
terms  of  it  must  be  fulfilled,  whatever  they  may  be. 

FAILURE  TO  USE  PROPER  MATERIALS. 

If  the  nature  of  the  materials  to  be  used  for  any  opera- 
tions, or  in  making  crowns,  bridges  or  sets  of  artificial  teeth 
is  specified  beforehand,  of  course  the  dentist  may  not  sub- 
stitute other  and  different  materials,  even  though  they  be 
as  good  or  better.  If  he  does  so  he  is  liable  to  lose  all  com- 
pensation for  his  services,  and  may  have  to  pay  damages  be- 
sides. The  same  considerations  apply  to  the  quality  of  the 
material  used. 


'25  Cyc,  1325  to  1370. 


214  DENTAL  JURISPRUDENCE. 

If  nothing  is  specified  as  to  the  nature  or  quality  of  the 
materials  to  be  used,  the  dentist  must  use  such  as  are  suit- 
able for  the  work  to  be  done  and  the  circumstances  of  the 
case ;  such  as  a  reasonably  skillful  dentist  would  use. 

FAILURE  TO  COMPLETE  WORK  IN  TIME. 

"If  the  dentist  expressly  agreed  to  perform  the  work 
undertaken  in  a  specific  time,  he  is  bound  by  his  promise,  and 
will  be  liable  to  his  patient  in  damages  for  breach  of  con- 
tract." This  may  involve  entire  loss  of  compensation  for  his 
services,  and  damages  besides. 

"The  liability  of  the  dentist  for  the  loss  of  the  value  of 
his  services,  in  addition  to  damages,  is  confined  to  cases  where 
time  is  of  the  'essence  of  the  contract,'  as  the  legal  expres- 
sion is.  That  is,  where  the  time  within  which  the  service  is 
to  be  performed  is  an  important  element  of  the  contract,  and 
is  so  understood  by  both  parties.  The  mere  fact  that  a  time 
is  fixed,  as  if  the  dentist  should  say :  T  will  have  this  fin- 
ished for  you  by  Friday  next,'  or  'it  will  not  take  more  than 
three  weeks,'  will  not  render  the  dentist  liable  for  the  loss 
of  the  value  of  his  work,  or  for  damages  if  the  work  is  not 
completed  at  the  time  mentioned." 

"It  is  believed  that  the  liability  of  the  dentist  for  the 
total  loss  of  the  value  of  his  services  in  addition  to  damages 
is  confined  to  cases  where,  for  the  patient's  purposes,  the  work 
is  practically  valueless  to  him  unless  completed  within  the 
time  specified,  or  where  the  work  is  of  such  a  character  that 
the  patient  can  refuse  to  accept  or  enjoy  the  benefits  of  it." 

If  time  is  of  the  "essence  of  the  contract"  in  the  case 
of  a  crown  or  bridge  or  artificial  teeth,  if  not  ready  at  the 
time  specified  the  patient  may  refuse  to  accept  them,  and 
may  have  a  claim  for  damages  also,  but  if  he  accepts  the  work 
he  must  pay  for  it,  though  he  may  offset  the  damage  he  has 
suffered  against  the  bill,  and  if  greater  than  the  bill,  the  den- 
tist would  have  to  pay  the  balance  instead  of  the  patient. 

"Meaning  of  the  Word  'About.' — Frequently  the  den- 
tist does  not  make  a  definite  promise  to  complete  the  work 
for  the  patient  by  a  certain  date,  but  informs  the  patient  that 


LIABILITY  FOR  COMPENSATION.  215 

it  will  take  'about'  such  and  such  a  time."  Ordinarily  in  such 
cases  a  considerable  variation  from  the  time  mentioned  would 
not  affect  the  obligations  or  duties  of  either  party,  but  if 
there  were  a  close  relation  of  the  time  consumed  and  the 
amount  of  the  bill  it  might  become  "necessary  to  determine 
what  the  word  'about'  signifies.  Since  the  very  object  the 
dentist  has  in  using  the  word  is  to  guard  against  binding 
himself  to  finish  the  work  at  a  definite  date,  it  is  plain  that 
his  promise  to  finish  the  work  in  'about,'  say  two  months, 
will  not  render  him  liable  for  breach  of  contract  if  he  fails 
to  complete  it  in  exactly  two  months ;  nor  in  such  a  case  will 
the  patient  necessarily  be  justified  in  refusing  to  pay  him 
for  such  services,  after  the  two  months  have  expired,  as  may 
be  necessary  to  complete  the  work."  If  however,  the  work 
consumed  three  or  fouth  months,  there  might  arise,  under  cer- 
tain circumstances,  a  question  for  a  jury  to  decide,  whether 
the  word  "about"  could  be  stretched  so  far. 

BREACH    OF    WARRANTY    OF    CURE. 

It  is  unwise  and  professionally  improper  for  dentists  and 
physicians  to  warrant  cures,  or  the  success  or  durability  of 
operations,  or  artificial  substitutes  for  lost  teeth,  and  the  law 
does  not  recognize  any  such  obligation  or  duty  on  their  part : 
But  if  any  dentist  or  physician  is  so  foolish  as  to  warrant 
his  work,  the  Ic.w  will  require  him  to  make  good  his  war- 
ranty. "The  rule  'no  cure,  no  pay,'  governs  only  where  there 
is  an  express  agreement  to  that  effect'  says  the  court  in 
Bronson  v.  Hoffman.^  All  that  the  law  requires  of  him  is 
that  he  treat  the  patient  in  a  reasonably  skillful  manner  and 
with  due  care.     *    *    *" 

"*  *  *  ji",  Wilkins  v.  Ferrell-  a  dentist  was  sued  for 
malpractice  in  extracting  a  tooth,  whereby  the  patient's  jaw- 
bone was  fractured.  On  the  trial  the  dentist's  counsel  asked 
the  trial  court  to  instruct  the  jury  that  'a  dentist  never  in- 
sures the  result  and  simply  engages  that  he  possesses  a  rea- 
sonable degree  of  skill,   such   as   is   ordinarily  possessed  by 


7  Hun.  N.  Y.,  674  (1876). 

^Wilkins  v.  Ferrell  (Texas),  30  S.  W.,  450  (1895). 


216  DENTAL  JURISPRUDENCE. 

the  profession  generally,  and  to  exercise  that  skill  with  rea- 
sonable care  and  diligence.'  The  trial  court  refused  to  give 
this  instruction,  and  the  appellate  court  held  that  the  in- 
structions asked  for  correctly  stated  the  law,  and  should  have 
been  given,  and  a  verdict  having  been  found  against  the  den- 
tist, the  court  reversed  the  judgment  and  ordered  a  new  trial." 

"There  is  no  legal  objection  to  a  dentist  and  his  patient 
entering  into  a  contract  that  the  patient  is  not  to  pay  the 
dentist  anything  for  his  services  unless  he  dentist  effect 
a  cure."  A  self  respecting  professional  man,  should,  how- 
ever, never  make  such  a  contract  unless  the  circumstances 
are  peculiar  and  unusual. 

"Sometimes  a  dentist  promises  to  make  a  plate  that  will 
'please'  or  be  'satisfactory'  to  the  patient.  That  this  is  a 
very  rash  promise  to  make  all  courts  are  agreed.  All  courts 
however,  are  not  agreed  as  to  the  standard  required  by  such 
a  warranty." 

Some  hold  that  the  patient  is  the  sole  judge  whether  the 
work  "pleases"  or  is  "satisfactory"  and  "if  he  is  not  sat- 
isfied for  any  cause,  no  matter  how  whimsical,  the  dentist  can- 
not recover  for  his  services.  These  courts  leave  it  to  the 
jury  to  say  whether  the  work  is  satisfactory  to  the  patient  or 
not.     *     *     * 

"Other  courts  have  treated  such  promises  more  leniently, 
and  hold  that  if  the  work  ought  to  be  satisfactory  to  the 
patient  the  dentist  may  recover  whether  the  work  is  satisfactory 
or  not." 

Such  controversies  should  very  seldom  arise  between  a 
dentist  and  his  patient,  and  very  few  of  those  that  do  arise 
should  be  allowed  to  get  into  court. 

A  dentist  should  use  every  endeavor  possible  to  make  his 
work  right,  and  if  it  really  is  right,  it  will  be  very  seldom 
indeed  that  a  patient  cannot  be  convinced  of  it.  A  patient 
should  be  made  to  understand,  also,  if  they  express  dissatis- 
faction after  the  utmost  endeavors,  that  "if  a  set  of  teeth  is 
good  enough  to  keep  and  to  use,  it  is  good  enough  to  pay  for." 


CHAPTER  XVII. 

LIABILITY  OF  DENTIST  TO  PATIENT  FOR  MALPRACTICE* — FOR  IN- 
FECTING A  PATIENT — FOR  OPERATING  WITHOUT  CONSENT — 
DAMAGES — STATUTE  OF  LIMITATIONS — DEFINITION  OF  MAL- 
PRACTICE. 

"Malpractice,  in  law,  as  applied  to  physicians  and  sur- 
geons, means  generally  professional  misconduct  toward  a 
patient  which  is  considered  reprehensible  either  because  im- 
moral in  itself,  or  because  contrary  to  law  or  expressly  for- 
bidden by  the  law.  In  a  more  specific  sense,  it  means  bad, 
wrong,  or  injudicious  treatment  of  a  patient  professionally 
and  in  respect  to  the  particular  disease  or  injury,  resulting  in 
injury,  unnecessary  suffering,  or  death  to  the  patient,  and 
proceeding  from  ignorance,  carelessness,  want  of  proper  pro- 
fessional skill,  disregard  of  established  rules  or  principles, 
neglect,  or  a  malicious  or  criminal  intent."^ 

"This  definition  of  malpractice  applies  to  dentists,  the 
courts  in  suits  against  dentists  for  malpractice,  applying  the 
same  principles  as  in  the  case  of  physicians  and  surgeons. "- 

Injury  to  the  patient  is  an  essential  feature  of  legal  mal- 
practice. No  matter  how  unskillful,  incompetent,  or  careless 
a  dentist  may  be,  he  is  not  guilty  of  malpractice  from  a  legal 
point  of  view  unless  the  patient  suffers  injury.  It  is  true, 
however,  that  unskillful,  incompetent,  or  negligent  operating 
usually  does  injure  the  patient.  The  point  is  that  in  suits  for 
malpractice  the  injury  must  be  affirmatively  proven,  and  also 
the  neglect  or  failure  of  professional  duty. 

TIME    AT    WHICH    LIABILITY    COMMENCES. 

"The  liability  for  malpractice  is  founded  on  the  duty  the 
practitioner  owes  to  the  patient.  If  that  relation  has  not  sub- 
sisted  no   liability   is   incurred.     Therefore   a   dentist   is   not 


*Mikell.  p.   102. 

'Black's  Law  Diet.   (2nd.  Ed.),  751. 

"See  McCracken  v.  Smathers,   122  N.   C,  799  (1898). 


218  DENTAL  JURISPRUDENCE. 

liable  for  malpractice  in  refusing  to  treat  a  patient,  even 
though  no  other  dentist  is  available  and  the  case  is  urgent."^ 

The  case  cited  by  Mikell  is  an  extreme  one.  A  patient, 
alarmingly  ill,  sent  for  the  doctor  who  had  been  the  family 
physician,  and  the  messenger  explained  that  the  case  was 
urgent,  that  no  other  physician  could  be  procured  in  time, 
and  tendered  his  fee.  The  doctor  had  no  other  patient  re- 
quiring immediate  attention,  but  he  refused  to  go.  The 
patient  died,  supposedly  for  want  of  the  assistance  the  doctor 
might  have  given,  and  the  administrator  brought  suit  "for 
$10,000.00  damages  in  wrongfully  causing  the  death  of  his 
intestate.  The  trial  court  dismissed  the  suit,  and  the  admin- 
istrator appealed."  The  Supreme  Court  afihrmed  the  judg- 
ment of  the  trial  court  and  declared  that  a  physician  is  under 
no  legal  obligation  to  accept  and  treat  a  patient,  that  the 
license  of  the  state  to  practice  medicine  is  permissive  and  not 
compulsory,  and  that  the  "counsel's  analogies,  drawn  from  the 
obligations  to  the  public  on  the  part  of  innkeepers,  common 
carriers,  and  the  like,  are  beside  the  mark." 

It  is  a  well  established  legal  proposition  that  a  physician 
or  dentist  may  refuse  to  accept  a  patient  for  treatment,  for 
any  reason,  or  for  no  reason  at  all,  except  his  personal  prefer- 
ence or  choice.  If,  however,  a  patient  is  accepted  and  treat- 
ment begun  or  promised,  it  must  be  continued  as  long  as 
necessary  unless  he  is  dismissed  by  the  patient  or  he  notifies 
the  patient  that  he  will  discontinue  treatment  and  gives  suffi- 
cient time  in  which  he  may  procure  the  services  of  some- 
one else. 

LACK  OF  SKILL  OR  CARE  GIVING  RISE  TO  LIABILITY. 

"1.  In  General. — In  determining  the  degree  of  care  and 
skill  which  the  physician,  surgeon  and  dentist  must  exercise 
in  order  to  escape  liability  for  damages  that  the  patient  may 
suffer  from  his  treatment,  the  courts  are  not  entirely  agreed. 
All  the  courts  hold  that  the  practitioner  cannot  be  held  liable 
by  showing  that  he  did  not  exercise  the  highest  degree  of 
care  and  skill  possible.^     All  agree  that  to  fasten  such  liability 


'Hurley  v.  Eddingfield,  156  Ind.,  416  (1900). 
'See  Simonds  v.  Henry,  39  Me.,  155   (1855). 


LIABILITY  TO  THE  PATIENT.  219 

upon  him,  it  is  not  necessary  to  show  that  he  was  grossly 
negligent  in  a  given  case.  It  is  certain  that  he  must  have 
treated  the  patient  'negligently'  in  order  to  be  liable,  and 
that  if  he  exercised  'reasonable'  care  and  skill,  he  is  not  liable." 

"The  negligence  which  renders  a  dentist  liable  in  an 
action  for  malpractice  is  simply  a  failure  to  perform  the  duty 
which  he,  as  a  professional  man,  owes  to  his  patient.  This 
duty  is  usually  expressed  in  the  formula;  a  physician,  sur- 
geon or  dentist  is  required  to  possess  and  exercise  that  degree 
of  skill  and  learning  ordinarily  possessed  and  exercised  by  the 
members  of  his  profession  in  good  standing,  practicing  in 
similar  localities;  and  it  is  his  duty  to  use  reasonable  care  and 
diligence  in  the  exercise  of  his  skill  and  the  application  of  his 
learning,  and  to  act  according  to  his  best  judgment." 

"2.  Effect  of  Locality. — In  determining  the  degree  of 
skill  and  care  that  must  be  exercised  by  the  practitioner,  some 
courts  lay  down  the  rule  that  he  is  required  to  use  only  such 
care  and  skill  as  is  ordinarily  exercised  by  practitioners  in 
the  particular  locality  or  neighborhood  in  which  he  practices."^ 

"Other  courts  hold  that  the  practitioner  must  exercise 
such  care  and  skill  as  is  exercised  by  those  practicing,  not  in 
the  same  but  in  similar  localities  generally." 

In  the  case  cited  by  Mikell;  McCracken  v.  Smathers,'  the 
court  refused  to  instruct  in  accordance  with  the  first  of  the 
above  rules.  In  affirming  the  judgment  of  the  lower  court, 
the  Supreme  Court  stated  the  second  rule  as  follows :  "The 
degree  of  care  and  skill  required  is  that  possessed  and  exer- 
cised by  the  ordinary  members  of  his  profession.  It  need 
not  be  the  highest  skill  and  knowledge  known  to  the  profes- 
sion, but  it  must  be  such  as  is  ordinarily  possessed  by  the 
average  of  the  profession.  It  cannot  be  measured  simply  by 
the  profession  in  the  neighborhood,  as  the  standard  of  meas- 
urement would  be  entirely  too  variable  and  uncertain.  'Neigh- 
borhood' might  be  construed  into  a  very  limited  area  and  is 
generally   so   understood   among  our   people.     It   might  con- 


'Wood  V.  Wyeth,  106  N.  Y.  App.  Du.,  21  (1905);  Mullen  v.  Flau- 
ders.  7Z  Vt..  95  (1900);  Force  v.  Gregory,  63  Conn.,  167   (1893). 
^22  N.  C,  799  (1898). 


220  DENTAL  JURISPRUDENCE. 

tain  but  few  dentists,  in  sparsely  settled  sections,  perhaps 
only  one  or  two.  Both  might  be  men  of  very  inferior  qualifi- 
cations, and  to  say  that  they  might  set  themselves  up  as  the 
standard  of  a  learned  profession  and  prove  the  standing  of 
each  by  the  ability  of  the  other,  would  be  equally  unjust  to  the 
profession  and  to  its  patients.     *     *     *" 

"3.  Effect  of  the  State  of  the  Science. — Manifestly,  when 
judging  of  the  degree  of  care  and  skill  exercised  by  the  prac- 
titioner, regard  must  be  had  to  the  state  of  the  science  of 
dentistry  at  the  time  the  treatment  alleged  to  be  negligent 
was  given,  and  such  is  the  doctrine  of  the  cases." 

The  rule  is  not  closely  defined,  as,  indeed,  it  cannot  be. 
It  does  not  require  that  a  man  attend  a  graduate  school  of 
dentistry  every  few  years  in  order  to  keep  posted  upon  every- 
thing new  that  is  introduced  or  adopted  by  the  best  and  most 
advanced  men  of  the  profession,  nor  does  it  require  that  he 
buy  and  read  every  new  book  or  everything  that  is  published 
in  all  the  dental  journals,  nor  that  he  attend  a  certain  number 
of  dental  society  meetings.  But  if  he  never  does  any  of  these 
things  that  fact  would  be  likely  to  have  great  weight  in  the 
minds  of  a  court  and  jury  in  case  he  were  accused  of  negli- 
gence. 

"4.  Effect  of  Established  Methods  of  Treatment. — It  is 
generally  agreed  that  practitioners  are  bound  by  what  is 
universally  settled  in  the  profession,  and  when  an  established 
practice  or  a  particular  mode  of  treatment  has  been  followed 
for  a  long  time  and  is  upheld  by  the  consensus  of  opinion 
among  the  members  of  the  profession,  any  departure  there- 
from is  evidence  of  negligence  sufficient  to  render  the  dentist 
liable  for  malpractice,  if  injury  results."^ 

This  rule,  like  the  preceding  one,  cannot  be  closely  de- 
fined nor  strictly  applied.  On  the  one  hand  it  is  not  intended 
to  prevent  all  progress  of  the  profession  by  the  introduction 
of  new  modes  of  treatment  or  new  methods  of  practice.  But 
it  is  intended  to  prevent  the  reckless  experimenting  upon 
patients. 


'See  Patten  v.  Wiggen,  51   Me.,  594  (1862);   Carpenter  v.  Blake, 
60  Barb,  N.  Y.,  488   (1871). 


LIABILITY  TO  THE  PATIENT.  221 

Whenever  a  man  wishes  to  make  an  operation  or  apply  a 
mode  of  treatment  not  in  common  use  by  the  profession,  he 
should  obtain  the  consent  of  his  patient.  A  man  cannot  ex- 
periment upon  his  patient  without  liability  if  injury  results. 

"The  rule  protects  the  community  against  reckless  experi- 
ments, while  it  admits  the  adoption  of  new  remedies  and 
modes  of  treatment,  only  when  their  benefits  have  been  dem- 
onstrated, or  when,  from  the  necessity  of  the  case,  the  surgeon 
or  physician  must  be  left  to  the  exercise  of  his  own  skill  and 
experience." 

"If  it  is  shown  that  some  practitioners  have  abandoned 
the  established  mode  of  treatment,  and  applied  a  new  mode, 
and  found  it  to  succeed  as  well  or  better  than  the  established 
one,  it  is  not  negligent  to  resort  to  the  system  thus  practically 
tested.  But  before  the  new  practice  can  be  used,  to  shield 
the  practitioner  from  the  charge  of  malpractice,  it  must 
appear  that  the  cases  in  which  it  was  tested  were  substantially 
the  same  as  the  case  at  bar,  and  that  the  treatment  resorted 
to  has  been  successful  in  a  sufficient  number  of  instances  to 
establish  satisfactorily  the  propriety  and  safety  of  adopting  it. 
The  practitioner  cannot  try  experiments  on  his  patient."^ 

"The  dentist  is  not  liable  for  malpractice  in  not  follow- 
ing the  established  method  of  treatment,  if  the  condition  of  the 
patient  was  such  that  this  method  of  treatment  would  have 
resulted  in  injury  to  the  patient. "- 

"5.  Where  Services  are  Gratuitous. — The  rule  was  form- 
erly laid  down  that  the  practitioner,  when  his  services  were 
rendered  gratuitously  was  liable  for  gross  negligence  only.^ 
Later  authorities  deny  this,  and  lay  down  the  rule  that  when 
one  assumes  to  be  a  dentist  and  acts  as  such  the  fact  that  he 
did  not  charge  for  his  services  will  not  affect  the  rule  as  to 
the  degree  of  skill  and  care  required  of  him.*  He  is  still 
liable  for  any  injury  resulting  to  the  patient  from  lack  of 
ordinary  care  and  skill." 


'Carpenter  v.  Blake.  60  Barb.  N.  Y.,  488   (1871). 
'Hallam  v.  Mean.  82  Ills.,  379  (1876). 
^  Shearman  &  Redfield  on   Neg.,  2nd  Ed.,  sec.  604. 
'Peck  V.  Hutchinson,  88  Iowa,  320  (1893). 


222  DENTAL  JURISPRUDENCE. 

"Liability  for  Insufficient  or  Wrong  Diagnosis. — If 
through  negHgence  or  the  want  of  ordinary  skill,  care  or  dili- 
gence, the  practitioner  fails  to  make  such  a  sufficient  exami- 
nation as  would  enable  him  to  correctly  diagnosticate  the  case, 
he  is  guilty  of  malpractice  and  liable  for  any  damages  result- 
ing therefrom.     *     *     *"^ 

"It  is  said  that  an  erroneous  diagnosis  alone,  not  followed 
by  improper  treatment  does  not  render  the  practitioner  liable 
for  malpractice."- 

"In  that  case,  however,  the  erroneous  diagnosis  did  not 
result  in  injury  to  the  patient,  as  the  treatment  followed  was 
equally  proper  whether  the  injury  was  as  diagnosticated  or  as 
claimed  by  the  patient." 

The  rule  means  that  if  injury  results  from  a  wrong 
diagnosis  either  by  determining  a  wrong  course  of  treatment 
or  no  treatment  at  all,  the  dentist  would  be  liable  for  mal- 
practice unless  ordinary  care  and  skill  were  used. 

"Liability  for  Advising  Erroneous  Treatment. — A  dentist 
is  liable  in  a  suit  for  malpractice  not  only  when  he  negligently 
performs  work  he  has  undertaken,  but  for  advising  a  certain 
course  of  treatment,  operation,  extraction,  etc.,  if,  in  his 
opinion,  or  in  the  opinion  of  a  dentist  of  reasonable  skill,  such 
treatment  is  unnecessary  and  unreasonable,  and  results  in 
injury  to  the  patient,  even  though  the  actual  treatment  were 
skillfully  administered ;  for  when  the  patient  submits  his  case 
to  the  dentist  he  has  a  right  to  rely  on  the  knowledge  of  the 
dentist  as  to  the  proper  course  of  treatment,  and  his  good  faith 
in  advising  the  proper  course,  as  well  as  his  skill  in  perform- 
ing the  actual  work.  Even  though  the  patient  does  not  ex- 
pressly ask  the  dentist's  advice  as  to  the  proper  treatment  in 
the  particular  case,  but  merely  requests  the  dentist  to  perforni 
a  certain  work,  say  to  extract  a  tooth,  it  is  the  duty  of  the 
dentist  if,  in  his  opinion,  extraction  is  unnecessary,  to  advise 
the  patient  to  that  effect,  and  the  patient  would  have  the  right, 
in  the  absence  of  contrary  advice  by  the  dentist  to  assume  that 
the  dentist  considered  the  operation  proper."^ 


ni4  Kv.,  20  (1902). 

'Tomer  v.  Aiken,  126  Iowa,  114  (1904). 

'Gramm  v.  Bocuer,  56  Ind.,  497  (1877). 


LIABILITY  TO  THE  PATIENT.  223 

"If,  however,  the  dentist  advises  the  patient  that  the  opera- 
tion is  unnecessary  and  improper,  if  the  patient — at  least  if  the 
patient  be  of  mature  years  and  sound  mind — insists  on  the  opera- 
tion, and  the  dentist  thereupon  performs  it,  doing  the  work  skill- 
fully, the  dentist  is  not  liable  to  the  patient  for  any  damage 
sought  on  the  ground  that  the  operation  was  improper  and 
injurious." 

The  right  thing  to  do  in  such  a  case  is  to  refuse  to  make 
an  improper  or  injurious  operation  no  matter  how  urgently  the 
patient  may  desire  it.  Even  the  knowledge  that  the  patient  will 
go  to  someone  else  who  will  do  it,  will  not  justify  a  man  in  his 
own  estimation  for  doing  a  patient  injury. 

"Liability  for  Erroneous  Prescription. — The  care  and  skill 
required  of  the  dentist  is  not  confined  to  his  acts  in  actually  treat- 
ing the  patient.  The  same  care  is  required  of  him  by  the  law  in 
writing  prescriptions.  If  through  negligence  or  ignorance  in 
writing  a  prescription  the  patient  suffers  damage,  the  dentist  is 
liable  therefor  in  a  civil  action."^ 

(If  the  injury  were  serious  enough  he  would  be  liable  in  a 
criminal  action  also.) 

"Liability  for  Omission  to  Give  Instructions. — It  is  the  duty 
of  the  dentist  not  only  to  use  proper  care  and  skill  in  the  actual 
work  done  by  him  for  the  patient,  but  to  give  proper  instructions 
to  the  patient  as  to  the  care  or  use  of  his  teeth  or  mouth,  so  far 
as  such  instructions  are  necessary  to  obtain  the  result  desired 
from  the  treatment.  A  failure  to  give  any  instruction  when  such 
instruction  should  be  given,  or  the  giving  of  erroneous  instruc- 
tions will,  if  injury  result,  render  the  dentist  liable  for  mal- 
practice.    *     ''^     *"- 

"Liability  for  Abandonment  of  Patient. — It  has  been  de- 
cided many  times  by  the  courts  that  the  physician  who  under- 
takes the  treatment  of  an  ill  person,  renders  himself  liable  in 
damages  if.  without  the  patient's  consent,  or  notice  to  the  patient, 
he  prematurely  abandons  the  case." 

Mikell  has  several  pages  under  this  head  but  the  matters 
of  chief  importance  may  be  stated  in  a  brief  quotation. 


^Murdock  V.  Walker,  43  111.  App..  590   (1892). 

'See  Beck  v.  The  German  Klinik.  78  Iowa,  696  (1889). 


224  DENTAL  JURISPRUDENCE. 

"The  obligation  of  the  dentist  is  only  to  continue  to  treat 
the  patient  unless  (1)  he  notify  the  patient  that  he  does  not 
propose  to  continue  his  attendance,  in  time  for  the  patient  to 
secure  the  services  of  another  dentist;  or  (2)  unless  the  patient 
consents  to  the  discontinuance  of  the  treatment;  or  (3)  the 
condition  of  the  patient  is  such  as  to  no  longer  require  treatment." 

Each  of  these  three  propositions  is  elaborated  and  fortified 
by  quotations  from  court  decisions,  but  nothing  of  much  im- 
portance is  added  to  their  meaning. 

"Liability  for  Communication  of  Disease  to  Patient. — It  is 
the  duty  of  the  practitioner  while  treating  his  patient,  to  use 
reasonable  care  and  employ  reasonable  skill  not  to  communicate 
infectious  or  contagious  diseases  to  the  patient.  This  rule  applies 
not  only  to  the  communication  of  a  disease  from  which  the  prac- 
titioner himself  is  suffering,  but  also  to  the  communication  by 
the  practitioner  from  one  patient  to  another.  If  a  dentist,  know- 
ing he  has  such  disease,  allows  the  patient  to  visit  him  without 
apprising  the  patient  of  the  danger,  and  without  taking  proper 
precautions  on  his  own  part,  and  communicates  the  disease  to  the 
patient,  he  is  liable  to  the  patient  for  any  damage  the  latter  suffers 
thereby."^ 

"Not  only  is  he  liable  for  damages  resulting  from  thus 
communicating  a  disease  from  which  he  suffers,  but  he  is  also 
liable  if  he  negligently  transmits  a  disease  from  one  patient  to 
another,  as  where  having  treated  one  patient  known  to  him  to 
have  an  infectious  or  contagious  disease,  he  proceeds  to  treat 
another  patient  without  warning  such  patient,  and  without  taking 
proper  precautions  against  the  communication  of  the  disease." 

"The  same  rule  applies  whether  the  transmission  of  the 
disease  was  effected  through  the  medium  of  the  practitioner 
himself,  or  by  the  use  of  infected  instruments." 

"Liability  for  Improper  Use  of  Anesthetics. — In  the  use  of 
anesthetics,  as  in  the  treatment  itself,  the  dentist  is  liable  for  any 
injury,  due  to  lack  of  proper  care  and  skill,  the  patient  may  suffer 
If  the  particular  anesthetic  used  was  such  as  would  not  have 
been  used  by  a  reasonably  skillful  and  careful  practitioner,  or  if 


'See  Piper  v.  Manifee,  12  B.  Monroe,  Ky.,  465  (1851). 


LIABILITY  TO  THE  PATIENT.  225 

it  was  administered  negligently  either  as  to  quantity  or  the  length 
of  time  during  which  it  was  used,  malpractice  may  be  inferred.^ 
It  was  further  held  in  the  case  last  cited,  that  the  dentist  in  using 
an  anesthetic  is  only  bound  to  look  to  natural  and  probable  effects, 
that  he  is  not  answerable  for  negligence  for  results  arising  from 
the  peculiar  temperament  or  condition  of  the  patient,  of  which 
he  had  no  knowledge.  This  doctrine  would  seem  to  need  quali- 
fication. It  being  established  at  the  present  day  that  certain 
anesthetics  are  dangerous  to  persons  suffering  from  certain  dis- 
eases, it  would  seem  incumbent  on  the  dentist  to  use  reasonable 
care  and  skill  to  discover  whether  the  patient  had  such  disease 
before  administering  the  anesthetic,  and  to  abstain  from  using 
it  if  it  would  be  dangerous." 

-"Where  the  administration  of  an  anesthetic  is  necessary  or 
advisable  for  professional  purposes,  and  objection  to  its  admin- 
istration not  appearing  or  being  discoverable  by  careful  and  skill- 
ful diagnosis,  he  is  not  liable  for  resulting  damages  unless  at  least 
two  facts  co-exist,  namely : 

1.  That  he  was  guilty  of  negligence  in  reference  to  the  ad- 
ministration of  the  anesthetic;  and 

2  That  the  injury  of  which  the  patient  complains  was  the 
result  of  this  negligence  in  the  use  of  the  anesthetic." 

"The  negligence  in  the  administration  of  the  anesthetic  may 
have  consisted  in  administering  it  without  sufficient  preliminary 
examination,  or  in  administering  an  unfit  and  unsuitable  drug, 
or  in  the  unskillful  or  careless  manner  of  administration,  or  in 
the  excessive  amount  given. "-^ 

"Extreme  Responsibility  in  Fact. — In  dealing  with  anes- 
thetics, the  practitioner  must  know  that  he  is  using  instrumentali- 
ties that  are  dangerous  and  deadly,  and  his  care  must  be  in  pro- 
portion to  the  risk  involved  to  his  patient.  His  responsibility 
begins  with  the  examination  preceding  the  administration  of 
the  drug  and  carelessness  resulting  in  the  determination  to  use 
the  same  when  clearly  it  should  not  have  been  given  will  make 
him  liable  in  malpractice  for  resulting  injuries  and,  possibly, 
for  manslaughter,  where  the  consequences  are  death.    He  cannot 

'Bogle  V.  Winslow,  5  Phila.,  136  (1863). 
'Dental  Jurisprudence  by  E.  D.  Brothers,  p.  63-64. 
'Bogle  V.  Winslow,  5  Phila.,  136-139. 


226  DENTAL  JURISPRUDENCE. 

trifle  with  the  health  or  Hfe  of  his  patient  and  not  shoulder  the 
responsibility."^ 

-"Liability  for  Treating  Patient  Without  Consent. — Every 
person  has  the  right  to  the  inviolability  of  his  person.  This  right 
forbids  anyone,  dentist,  physician,  surgeon  or  other  as  a  general 
rule,  to  do  any  act  involving  the  physical  touching  of  the  patient, 
without  the  patient's  consent.  'The  patient  must  be  final  arbiter 
as  to  whether  he  shall  take  his  chances  with  an  operation,  or 
take  his  chances  of  living  without  it.  *  *  *  Consent,  there- 
fore, of  an  individual  must  be  expressly  or  impliedly  given  before 
a  surgeon  may  have  a  right  to  operate.'  "^ 

"If  the  practitioner  operates  without  the  consent  of  the 
patient  when  he  is  in  a  condition  to  be  consulted,  he  is  liable  in 
damages  in  an  action  for  assault  and  battery,  no  matter  how  im- 
perative the  practitioner  may  deem  the  operation."* 

The  cases  cited  were  in  medical  or  surgical  practice.  In 
dentistry  it  will  very  seldom  happen  that  urgent  necessity  for  an 
immediate  operation  will  arise  when  the  patient  is  in  such  con- 
dition as  to  make  it  impossible  to  consult  him.  It  may  happen 
when  extracting  teeth  under  an  anesthetic,  and  consent  should 
be  obtained  beforehand  for  such  operation  as  may  be  necessary. 

"Consent  of  Relatives. — If  the  patient  himself  is  of  the  age 
of  discretion,  it  would  seem  that  his  consent  is  sufficient.  It  has 
been  held  in  State  v.  Housekeeper^  that  if  a  married  woman 
consents  to  an  operation  on  herself,  it  is  not  necessary  to  obtain 
the  consent  of  her  husband  also.  Writers  are  not  agreed,  how- 
ever, whether  in  the  case  of  young  children,  or  persons  non 
compos  mentis  the  consent  of  the  parent  or  guardian  is  necessary 
to  justify  a  practitioner  in  performing  an  operation.*"'  It  has 
been  held  in  one  case  that  the  consent  of  the  father  is  not  neces- 
sary to  justify  an  operation  on  a  child,  aged  seventeen  years.' 
Certainly  such  consent  should  be  secured  whenever  possible,  and 


^State  V.  Baldwin,  36  Kan.,  1. 

^Mikell  p.  124. 

'Kinkead,  Torts,  sec.  375;  State  v.  Housekeeper,  70  Md.,  162  (1888). 

*State  V.  Housekeeper,  70  Md.,  162  (1888). 

70  Md.  162  (1888). 

''See  1   Kinkead,  Torts,  sec.  376. 

'Bakker  v.  Welch,  144  Mich.,  632  (1906). 


LIABILITY  TO  THE  PATIENT.  227 

the  practitioner  should  never  operate  without  such  consent  except 
in  extreme  cases  and  when  he  is  prepared  to  take  the  conse- 
quences of  a  possible  suit." 

"Consent  Presumed. — The  consent  of  the  patient  to  a  partic- 
ular act  of  the  dentist  need  not  be  express.  Such  consent  may 
be  presumed  if  the  facts  warrant  it,  and  a  consent  to  the  greater 
included  a  consent  to  the  less  if  the  less  is  included  in  the  greater. 
Under  our  law  Shylock  would  have  been  entitled  to  draw  the 
blood  necessary  to  taking  the  pound  of  flesh,  if  the  contract  for 
the  pound  of  flesh  had  been  valid.  If  a  patient  consents  to  have 
a  tooth  drawn,  his  consent  will  cover  the  necessary  laceration  of 
the  gum  and  consequent  spilling  of  blood.  A  consent  to  the  ex- 
traction of  a  specifically  designated  tooth,  however,  is  not  a  con- 
sent to  the  pulling  of  another  tooth,  either  instead  of  or  in  addi- 
tion to  the  tooth  indicated.  This  is  true  though  the  necessity  for 
pulling  the  second  tooth  was  greater  than  for  pulling  the  first, 
and  though  that  necessity  was  not  discovered  until  the  patient 
was  under  the  influence  of  an  anesthetic  and  hence  unable  to  be 
consulted  as  to  the  extraction  of  the  second  tooth." 

Under  such  circumstances  a  dentist  should  do  what  he 
found  indispensably  necessary,  and  take  his  chances.  But  the 
proper  way  is  to  have  the  terms  of  consent  cover  what  may  be 
found  necessary,  instead  of  only  some  specific  thing. 

"Consent  may  be  presumed  not  only  to  what  is  necessary  in 
the  actual  performance  of  the  operation  consented  to,  but  to  the 
extension  of  the  operation,  or  even  to  the  performance  of  an- 
other operation  if  the  facts  warrant  the  inference  of  consent. 
Whether  they  do  warrant  it  is  a  question  for  the  jury  to  decide." 

Effect  of  Admission  of  Lack  of  Skill. — So  far  as  malpractice 
cases  are  concerned,  a  short  quotation  from  Mikell  under  this 
head  will  suffice. 

"If,  when  consulted,  the  dentist  makes  known  to  the  patient 
his  lack  of  knowledge  and  skill,  or  the  patient  is  in  any  way  fully 
aware  of  it,  the  latter  cannot  complain  of  the  lack  of  that  which 
he  knew  did  not  exist. "^ 

Liability  for  Malpractice  of  Others. — 

"1.  Assistant. — The  dentist  is  liable  for  malpractice  not  only 


^Lorenz  v.  Jackson.  88  Hun.  N.  Y.,  200  (1895). 


228  DENTAL  JURISPRUDENCE. 

for  his  own  negligence,  but  for  the  negligent  treatment  of  an 
assistant  over  whose  actions  in  the  premises  the  dentist  has 
dominion  and  control;  or  for  such  treatment  by  a  person  who, 
under  the  circumstances,  a  reasonably  prudent  person  would 
be  justified  in  believing  was  aiding  the  dentist  in  his  professional 
work;  or  who  was  held  out  to  the  public  as  his  assistant;  if  the 
patient  relying  on  such  representations  presented  himself  at  the 
dentist's  office  for  treatment,  and  submitted  himself  to  a  dentist 
in  defendant's  office,  relying  upon  the  defendant  and  not  upon 
the  individual  who,  in  fact,  treated  him  as  the  responsible  head 
of  the  business."^ 

"2.  Partner. — A  dentist  is  liable  for  the  malpractice  of  his 
partner.  It  is  immaterial  whether  the  partner  alone  treated  the 
patient,  or  whether  he  was  treated  jointly  by  both  partners,  or 
whether  the  defendant  first  treated  the  patient  skillfully  and  his 
partner  later,  in  the  same,  or  another  case,  treated  him  unskill- 
fully  or  negligently."- 

"The  doctrine  is  thus  expressed  by  Simpson,  C.  J.,  in  Hyrne 
v.  Erwin  :^  'In  a  partnership  the  parties  associated  are,  in  one 
sense,  agents  of  each  other,  and  the  act  of  one  within  the  scope 
of  the  partnership  or  business  is  the  act  of  each  and  all,  as  fully 
as  if  each  was  present  and  participating  in  all  that  is  done.  And 
each  guarantees  that  within  the  scope  of  the  common  business 
reasonable  care,  diligence  and  skill  shall  be  displayed  by  the  one 
in  charge.     *     *     *" 

"3.  Substitute. — While  a  dentist  is  liable  for  injury  caused 
by  the  malpractice  of  his  assistant,  or  partner,  he  is  not  liable 
for  the  malpractice  of  another  dentist  whom  he  has  recom- 
mended to  the  patient,  the  latter  being  in  independent  practice, 
and  having  no  business  connection  with  the  former,  and  not  being 
employed  by  the  former  as  his  agent."* 

"4.  Druggist. — The  dentist  is  not  liable  for  the  negligence 
of  a  druggist,  over  whom  he  has  no  control  in  filling  a  pre- 
scription."^ 


^Wilkins  v.  Ferrell,  10  Tex.  Civ.  App.,  231  (1895). 
'Whittakei-  v.  Collins,  34  Minn.,  299  (1885). 
'23  S.  C,  226  (1885). 

^Myers  v.  Holborn,  58  N.  J.  L.,  193  (1895). 
"Stretton  v.  Holmes,  19  Ont.,  286  (1889). 


LIABILITY  TO  THE  PATIENT.  229 

"He  is,  however,  liable  for  his  own  negligence  in  giving  a 
wrong  prescription,  and  if  he  has  negligently  given  a  wrong  pre- 
scription, he  is  not  excused  by  the  fact  that  the  druggist  was  also 
negligent  in  filling  the  prescription,  if  the  prescription  was  filled 
as  written."^ 

"Efit'ect  of  Contributory  Negligence  of  Patient. — It  is  the 
duty  of  the  patient  to  co-operate  with  his  professional  adviser, 
and  to  conform  to  proper  and  necessary  treatment,  and  if  he  will 
not,  or  under  the  pressure  of  pain  cannot,  his  neglect  is  his 
own  wrong  or  misfortune,  for  which  he  has  no  right  to  hold  the 
practitioner  responsible. "- 

"If,  therefore,  the  patient  disobeys  the  reasonable  in- 
structions of  the  dentist,  he  cannot  recover  damages  even 
though  the  dentist  did  not  exercise  proper  skill  and  care,  if 
the  patient's  disobedience  directly  contributed  to  produce  the 
injury.     *     *     *"^ 

"It  is  not  sufficient  to  bar  recovery  that  the  patient  w^as 
negligent,  if  his  negligence  only  aggravated  the  effects  due 
to  the  malpractice  of  the  dentist,  but  did  not  bring  them  about 
or  conduce  to  them;  such  negligence  of  the  patient  merely 
goes  to  mitigate  the  damages  he  can  recover,  not  to  bar  a 
recovery."* 

"Effect  of  Recovery  of  Fee. — In  some  states  recovery  by 
the  dentist  in  a  suit  at  law  for  his  services,  bars  an  action  by 
the  patient  for  malpractice  founded  on  the  same  services. 
The  reason  for  this  rule  is  that  the  patient,  in  the  suit  against 
him  for  the  dentist's  fee,  might  have  defended  in  whole  or  in 
part,  by  showing  that  in  rendering  the  services  sued  for,  the 
dentist  had  been  guilty  of  malpractice.  If  he  omits  to  set  up 
his  defence  and  a  recovery  is  had  against  him,  he  cannot 
afterward  litigate  the  question  of  malpractice."'"' 

"In  other  states  it  is  held  that  the  above  rule  applied  only 
when,  in  a  suit  by  the  dentist  for  his  fees,  the  patient  appears 
and  bases  his  defence  on  the  ground  that  in  rendering  the 


'Murdock  v.  Walker,  43  111.  App..  590   (1891). 
^Shearman  and  Redfield,  Neg.  2nd  Ed.,  sec.  615. 
"Hibbard  v.  Thompson.  109  Map.,  286  (1872). 
%IcCracker  v.  Smathers,  122  N.  C.  799  (1898). 

^Bellinger  v.  Craigne,  31   Barb.   N.  Y.,   534    (1860);   Ely  v.   Wilber, 
49  N.  J.  L.,  685  (1887). 


230  DENTAL  JURISPRUDENCE. 

services,  the  dentist  was  guilty  of  malpractice.  If  the  patient 
does  not  appear  in  answer  to  the  suit  for  services,  or  appear- 
ing, defends  on  some  other  ground  than  that  of  malpractice 
of  the  dentist,  he  is  not  barred  from  subsequently  suing  the 
dentist  for  malpractice."^ 

The  reason  assigned  for  the  latter  view  is  that  "the  plain- 
tiff's claim  for  damages  resulting  from  malpractice  constitutes 
a  separate  and  independent  cause  of  action,"  and  besides  that 
it  might  be  unfair  to  compel  the  patient  to  present  his  claim 
for  damages  in  a  justice's  court,  where  the  amount  in  litiga- 
tion is  limited  to  $200.00. 

"Proof  of  Malpractice. — AVhen  a  patient  has  brought  suit 
against  a  dentist  for  malpractice,  the  burden  of  proof  is  on 
the  patient.  To  establish  his  case  he  must  prove:  (1)  The 
duty  of  the  dentist  to  treat  him  properly,  i.  e.,  that  the  rela- 
tion of  patient  and  dentist  subsisted  between  them ;  (2)  That 
the  dentist  neglected  his  duty;  (3)  That  the  patient  suffered 
injury;  (4)  That  the  injury  was  caused  by  the  negligence  of 
the  dentist.  It  is  not  sufficient  to  prove  that  he  has  not 
benefited  by  the  treatment,  the  dentist  does  not,  in  the  absence 
of  express  agreement,  undertake  that  his  treatment  will  be 
beneficial.  Nor  can  he  recover  by  showing  merely  that  his 
condition  was  worse  after  treatment  than  before ;  the  dentist 
does  not  undertake  that  it  shall  be  better.  He  only  undertakes 
that  he  will  treat  the  patient  with  ordinary  skill,  care  and 
diligence.  If  he  does  this  he  is  not  ordinarily  liable  for  the 
result." 

"iWhile  the  burden  of  proving  negligence  is  on  the  plain- 
tiff, he  is  not  required  to  prove  it  beyond  a  reasonable  doubt, 
as  in  the  case  where  the  negligence  is  made  the  basis  of  a 
prosecution  by  the  state,  but  only  by  a  preponderance  of  the 
evidence."' 

"From  the  nature  of  the  charge  against  the  dentist,  gen- 
erally speaking,  proof  of  his  negligence  can  be  made  only  by 
expert  witnesses.     *     *     *3     Negligence  cannot  be  presumed." 


^See   Bigelow,  Estoppel   (2nd  Ed.)   98;   Goble  v.   Dillon,  86   Ind., 
327  (1882);  Ressequie  v.  Byers,  52  Wis.,  650  (1881). 
'Wood  V.  Wyeth,  106  N.  Y.  App.  Div.,  21  (1905). 
=46  Kan.,  78    (1891). 


LIABILITY  TO  THE  PATIENT.  231 

"The  question  whether  a  surgical  operation  has  been  un- 
skillfully  performed  or  not  is  one  of  science,  and  is  to  be  deter- 
mined by  the  testimony  of  skillful  surgeons  as  to  their  opinion, 
founded  either  wholly  on  an  examination  of  the  part  operated 
upon,  or  partly  on  such  examination  and  partly  on  informa- 
tion derived  from  the  patient ;  or  partly  on  such  examination, 
partly  on  such  information  and  partly  on  facts  conceded  or 
proved  at  the  trial.  McClelland  Civil  Malpractice,  304.  *  *  *" 

"The  injury  may  be  of  such  a  nature,  however,  as  itself 
to  show  negligence,  at  least  prima  facie.  In  such  a  case  the 
burden  of  disproving  negligence  is  on  the  dentist.  In  Shock- 
ley  v.  Tusker^  the  patient  was  severely  burned  by  X-Rays 
while  undergoing  treatment  for  appendicitis.  In  an  action 
against  the  surgeon  for  malpractice,  the  court  said :  'We  think 
the  fact  that  plaintiff  was  severely  burned  is  some  evidence  in 
itself  that  the  treatment  was  improper.'  " 

"When  sued  for  malpractice  the  dentist  should  go  to  the 
trial  prepared  both  by  his  own  knowledge  and  the  evidence  of 
experts  to  disprove  the  charge  of  negligence.  Many  verdicts 
have  gone  against  practitioners  for  lack  of  this  precau- 
tion.    *     *     *" 

"Damages  for  Malpractice. — The  damages  recoverable  in 
an  action  against  a  dentist  for  malpractice  may  be:  (1)  Nomi- 
nal; (2)  Compensatory;  or  (3)  Punitive.  Nominal  damages 
are  awarded  by  the  jury  where  negligence  of  the  dentist  has 
been  proved  but  it  is  impossible  to  distinguish  between  the 
consequences  of  the  malpractice  and  the  consequences  of  the 
trouble  the  dentist  was  treating.  Nominal  damages  are 
usually  computed  at  six  cents. "- 

"Compensatory  damages  are  damages  designed  to  com- 
pensate the  patient  for  the  injury  suffered  by  the  maltreat- 
ment of  the  dentist.  They  are  measured  by  the  loss  or  in- 
jury to  the  plaintiff  directly  and  naturally  resulting  from  the 
dentist's  fault  or  negligence,  not  alone  by  such  loss  or  injury 
as  an  ordinary  man  might  have  expected  would  follow  from 
the  negligence."^ 


'127  Iowa.  456  (1905). 

"Becker  v.  Taniski.  IS  N.  Y.  Supp..  675  (1891). 
Challis  V.  Lake,  71  N.  H.,  90  (1901). 


3/- 


232  DENTAL  JURISPRUDENCE. 

"In  estimating  the  damages  suffered  by  the  patient,  the 
jury  should  take  into  consideration  all  the  circumstances  of 
the  case,  the  pecuniary  loss,  resulting  from  inability  to  labor, 
the  bodily  and  mental  suffering,  loss  of  time,  actual  expenses 
incurred  by  the  patient,  the  ephemeral  or  permanent  character 
of  the  injury,  and  the  circumstances  of  the  injured  party  and 
award  the  patient  such  a  sum  of  money  as  will  compensate 
him  for  what  he  has  suffered,  or  will  suffer  as  the  result  of  the 
dentist's  treatment."^ 

"Punitive  or  exemplary  damages  are  given  by  way,  not 
only  of  compensation  to  the  patient,  but  of  punishment  to 
the  dentist.  The  jury  may  properly  award  them  when  the 
dentist  in  treating  his  patient  has  been  guilty  of  gross  negli- 
gence amounting  to  reckless  indifference,  or  where  the  man- 
ner of  treatment  shows  an  evil  motive  toward  the  patient." 

If  a  dentist  is  so  unfortunate  as  to  be  sued  for  malprac- 
tice he  should  seek  carefully  to  find  if  there  has  been  any 
contributory  negligence  on  the  part  of  the  patient,  either  in  a 
failure  strictly  to  follow  instructions,  or  to  take  such  care 
as  a  person  of  good  sense  ought  to  take  in  the  circumstances, 
and  he  should  insist  also  upon  a  careful  discrimination  be- 
tween the  harm  caused  by  the  disease  or  injury  itself  (for 
which,  of  course,  no  claim  can  be  made)  and  the  pain  or 
injury  caused  by  fault  of  the  dentist.  And  he  will  need  to 
call  in  some  of  his  friends  as  expert  witnesses  to  testify  to 
his  general  character,  ability  and  skill,  as  well  as  to  his  treat- 
ment of  the  case  in  question. 

"Statute  of  Limitations. — In  some  states  there  are  statutes 
of  limitation  expressly  applicable  to  actions  for  malpractice. 
In  those  states,  if  the  patient  does  not  bring  suit  within  the 
time  prescribed  by  the  statute  he  cannot,  of  course,  recover. 
In  most  states  there  is  no  statute  expressly  applicable  to 
actions  for  malpractice.  In  these  states,  however,  there  are 
statutes  of  limitations  applying  to  actions  for  breach  of  con- 
tract and  sometimes  a  different  statute  applying  to  actions 
of  tort.  As  a  patient  may  ground  his  suit  for  malpractice 
either  on  the  breach  of  the  contract  of  the  dentist  to  treat  him 


^330  Cyc,  1590. 


LIABILITY  TO  THE  PATIENT.  233 

with  care  and  skill,  or  may  ground  it  on  negligence,  what 
period  of  limitation  will  apply  will  depend  on  the  remedy 
chosen  by  the  plaintiff.  The  statutes  of  the  different  states 
vary  in  the  length  of  time  they  prescribe  within  which  the 
action  must  be  brought." 


CHAPTER  XVIII. 

LIABILITY  OF  THE  DENTIST  TO  THE  STATE — LIABILITY  FOR  ILLEGAL 
PRACTICE — THE  DENTIST  AS  A  WITNESS — PRIVILEGED  COMMU- 
NICATIONS— EXPERT  TESTIMONY — IDENTIFYING  THE  DEAD — 
JURY   DUTY. 

"1.  In  General. — The  statutes  regulating  the  practice  of 
dentistry  usually  provide  that  it  shall  be  a  misdemeanor  to 
practice  dentistry  without  complying  with  the  provisions  of 
the  statutes  as  to  license,  registry,  etc.  Under  these  statutes 
it  is  immaterial  how  well  qualified  a  person  is  to  practice 
from  the  point  of  view  of  the  profession ;  if  he  has  not  strictly 
complied  with  the  law  of  the  state  in  which  he  attempts  to 
practice,  he  is  liable  to  criminal  prosecution,  and  payment 
of  a  fine  ranging  from  twenty  to  five  hundred  dollars,  and  in 
some  cases  to  both  fine  and  imprisonment." 

"By  the  statutes  of  some  states  not  only  is  the  person 
practicing  liable  to  the  punishment  provided  by  law  if  he 
fails  to  register  his  license  when  and  where  he  begins  to 
practice,  but  he  is  likewise  liable  if  he  afterwards  removes 
into  another  county  of  the  same  state  and  there  practices,  or 
if,  while  still  practicing  where  he  is  registered,  he  practices 
in  any  other  county."^ 

Most  of  the  statutes  make  some  provision  for  the  prac- 
tice necessary  by  students  in  obtaining  their  professional 
education. 

Some,  like  that  of  Illinois,  restrict  such  practice  posi- 
tively to  the  dental  school,  others  allow  it  under  the  personal 
supervision  of  a  preceptor,  in  his  office,  and  at  least  one  state 
allows  this  during  the  interval  between  sessions  of  the  dental 
school. 

Under  this  general  head  of  liability  for  illegal  practice  Mikell 
elaborates  through  six  pages.  It  is  not  necessary  for  us  to  go 
into  all  those  minute  details  of  all  the  different  possibilities  of 


^The   Illinois  law  requires  registry  in  each  county  in  which  one 
practices. 


LIABILITY  TO  THE  STATE.  235 

illegal  practice.  "2.  Liability  for  practicing  under  a  false  pre- 
tence. *  *  *  Some  statutes  make  it  an  indictable  offence 
for  an  unqualified  person  to  use  the  title  'dentist'  or  'dental  prac- 
titioner' or  any  'name,  title,  addition  or  description  implying  that 
he  is  registered,  or  that  he  is  a  person  qualified  to  practice 
dentistry.'  "  The  Illinois  law  makes  practicing  under  an  assumed 
name  one  of  the  grounds  for  refusing  a  license  or  revoking  a 
license.  It  is  not  necessary  to  go  into  the  details  under  this  head 
which  occupy  two  pages  of  Mikell's  book. 

"3.  Liability  for  Practicing  After  Revocation  of  License. — 
The  statutes,  as  a  rule,  provide  for  the  revocation  of  the  license 
in  certain  events.  As  we  have  seen  elsewhere  a  license  once 
granted  cannot  be  revoked  without  opportunity  to  the  holder  to 
be  heard  in  his  own  defense." 

"While  the  statutes  generally  make  it  a  crime  to  practice 
without  first  obtaining  a  license  or  certificate,  they  do  not  gen- 
erally, in  terms,  provide  that  one  whose  license  has  been  revoked 
shall  be  guilty  of  a  crime  if  after  revocation  he  knowingly  con- 
tinues to  practice.  It  would  seem  in  reason,  however,  that  such 
person  should  be  in  the  same  position  as  though  he  never  had  had 
a  license.  Under  a  rule  of  the  criminal  law,  however,  that  penal 
statutes  shall  be  strictly  construed,  that  is,  construed  in  favor  of 
one  accused  of  a  crime,  it  has  been  held  that  when  the  statute 
did  not  in  terms  make  it  a  criminal  offence  to  practice  after  a 
license  has  been  revoked,  such  practice  was  not  indictable."^ 

This  construction  apparently  stultifies  the  clauses  in  most 
of  the  laws  providing  for  the  revocation  of  licenses  under  cer- 
tain conditions ;  and  it  would  seem  desirable  to  amend  the  laws 
by  specifying  what  consequences  shall  follow  the  revocation  of 
licenses. 

"4.  Burden  of  Proving  Right  to  Practice. — Where  a  statute 
makes  it  an  indictable  offence  to  practice  without  having  complied 
with  the  requirements  of  the  statute,  the  burden  of  proving  that 
the  accused  has  complied  with  such  requirements  is  generally  on 
the  accused. "- 


77  Cal.  164  (1888);  Williams  v.  People,  17  III.  App..  274  (1885). 
'People   V.   Fulda.   52   Hun,   N.   Y.,   65    (1889);   Williams   v.    People, 
20  111.  App.,  92  (1886). 


Ud  DENTAL  JURISPRUDENCE. 

"5.  Construction  of  Statute. — On  a  prosecution  for  prac- 
ticing without  compliance  with  the  requirements  of  the  statute, 
the  statute  will  be  strictly  construed  in  favor  of  the  defendant, 
and  if  the  facts  of  the  case  do  not  bring  it  clearly  within  the 
terms  of  the  statute,  he  cannot  be  convicted."^ 

"6.  Statute  of  Limitation. — In  some  states  a  prosecution  for 
illegally  practicing  dentistry  is  barred  if  not  brought  within  a 
certain  time  after  the  act  or  acts  relied  on  as  constituting  the 
practice  were  done.  Where  such  statutes  are  in  force,  the  burden 
of  proving  that  the  offence  was  done  within  the  time  prescribed 
by  the  statute  is  on  the  prosecution. "- 

"assault  and  battery." 

"Assault  and  Battery  consists  in  any  unlawful  touching  of 
the  person  of  another,  and  is  a  crime.  If  a  dentist  should 
without  the  consent  of  the  patient,  pull  a  tooth,  or  perform  any 
other  operation  on  the  patient,  he  would  be  liable,  not  only 
for  a  civil  suit  for  damages,  as  we  have  seen,  but  also  to  an 
indictment  for  this  crime.  A  dentist  should  always,  therefore, 
inform  the  patient  what  he  proposes  to  do  before  operating,  and 
procure  the  patient's  consent  thereto.  Such  consent  may  be  gen- 
eral or  specific.  If  the  patient  puts  himself  into  the  hands  of  the 
dentist,  telling  the  dentist  to  do  whatever  may  be  necessary,  this 
will  amount  to  a  consent  by  the  patient  to  any  act  of  the  dentist 
which  in  his  honest  and  bona  fide  judgment  is  necessary." 

"If,  however,  the  consent  of  the  patient  is  to  a  specific  act, 
say  to  the  pulling  of  a  certain  tooth,  and  the  dentist  should  de- 
liberately pull  another  tooth,  the  dentist  would  be  guilty  of  assault 
and  battery.  Nor  would  it  be  any  defence  that  the  extraction  of 
the  tooth  pulled  was  necessary  to  the  welfare  of  the  patient.  If 
the  tooth  extracted  was  pulled,  not  deliberately,  but  by  mistake, 
then  whether  the  dentist  would  be  liable  for  assault  and  battery 
would  depend  on  the  question  whether  the  mistake  was  an  honest 
one,  and  one  that  a  cautious  and  skillful  dentist  would  have  made 
under  the  circumstances.  If  it  were,  the  dentist  would  not  be 
guilty ;  but  if  the  mistake  were  due  to  negligence  it  seems  that  the 
dentist  would  be  guilty.     If  the  tooth  wrongfully  pulled  were  a 


'Robinson  v.  People,  23  Col.  123  (1876). 
'State  V.  Newton,  Wash.,  81  Pac,  1002  (1905). 


LIABILITY  TO  THE  STATE.  237 

front  tooth,  the  dentist  would  be  guilty  of  the  graver  crime  of 
mayhem.  Mayhem  being  defined  as  the  violently  depriving  an- 
other of  the  use  of  such  of  his  members  as  may  render  him  less 
able,  in  fighting,  either  to  defend  himself  or  annoy  his  adver- 
sary."^ 

"rape." 

"There  have  been  a  number  of  accusations  of  rape  brought 
against  dentists.  Rape  is  the  carnal  knowledge  of  a  woman  by 
a  man  by  force  and  without  her  consent.  It  has  long  been  de- 
cided that  intercourse  with  a  woman  while  she  is  unconscious  is 
by  force  and  without  her  consent,  and  therefore  rape."- 

"As  said  many  years  ago  by  a  great  judge,  rape  is  the  crime 
of  all  others  of  which  it  is  easiest  to  accuse  and  which  it  is  most 
difficult  to  disprove.  Add  to  this  that  on  a  charge  of  this  crime 
the  sympathies  of- a  jury  are  always  strongly  on  the  side  of  the 
woman,  that  the  punishment  on  conviction  is  very  severe,  and 
that  even  if  the  charge  is  disproved,  the  defendant's  reputation 
is  seriously  injured  and  his  business  destroyed,  it  is  readily  seen 
that  precautions  should  be  taken  against  even  a  charge  of  the 
crime.  If  possible,  the  dentist  should  always,  when  treating  a 
woman,  have  some  one  in  his  office  other  than  himself  and  his 
patient.  He  should  never,  on  any  account,  place  a  female  patient 
under  the  influence  of  an  anesthetic  without  a  third  person,  pref- 
erably a  woman,  present  during  the  whole  time  the  patient  is 
under  the  influence  of  the  drug,  for  it  a  well  known  fact  that  one 
of  the  effects  of  anesthetics  is  to  induce  hallucinations  of  a  sexual 
character." 

HOMICIDE. 

"*  *  *  If  the  patient  should  die  as  the  result  of  negli- 
gence on  the  part  of  the  dentist,  the  dentist  may  find  himself 
involved  in  a  charge  of  manslaughter." 

"Manslaughter  is  committed  in  causing  the  death  of  a  person 
by  negligence.  The  negligence  may  consist  either  in  doing  an 
act  or  in  omitting  to  do  an  act.  No  intent  to  cause  the  injury, 
no  ill  will  to  the  person  injured,  not  even  an  actual  knowledge 
that  death  is  likely  to  result  from  the  act  or  omission  is  neces- 


^Blackstone,  Conn.,  203. 

'Payne  v.  State,  40  Tex..  Cr.  R.,  202  (1889). 


238  DENTAL  JURISPRUDENCE. 

sary  to  constitute  the  crime.  If  the  death  of  the  patient  was  the 
result  of  the  negligence  of  the  dentist,  his  inattention  or  ignorance, 
he  is  guilty  of  manslaughter.  By  the  weight  of  authority  the 
same  rules  apply  whether  the  dentist  is  practicing  with  or  with- 
out authority  of  law." 

"A  dentist  is  not  guilty  of  manslaughter  merely  because  a 
patient  dies  from  his  act  in  performing  an  operation  or  adminis- 
tering an  anesthetic,  if  it  is  done  in  good  faith,  even  though  the 
dentist  made  a  mistake  or  did  not  possess  the  highest  skill.  The 
act  or  omission  must  be  negligent  to  make  him  guilty.  As  to 
just  what  degree  of  negligence  is  necessary,  the  courts  are  not 
agreed.    It  is  usually  declared  that  it  must  be  gross  negligence."^ 

PRACTICING  ON  SUNDAY. 

"We  have  seen  in  treating  of  contracts  that  it  is  generally 
forbidden  to  labor  on  Sunday,  and  that  contracts  for  work  on 
that  day  are  void.  Many  statutes  not  only  make  contracts  made 
on  Sunday  void,  but  also  make  it  a  criminal  offence  to  work  on 
that  day.  Under  these  statutes  a  dentist  is  as  liable  to  indictment 
as  anyone  else,  unless  he  can  bring  himself  within  the  exceptions 
usually  made  in  the  statute  as  to  works  of  necessity." 

"THE  DENTIST  AS  A  WITNESS." 
"securing  attendance." 
"Ever  since  the  statute  of  Elizabeth  enacted  in  1562-63,  it 
has  been  recognized  as  fundamental  that  the  public  has  a  right 
to  every  man's  evidence  in  a  civil  suit  pending  in  a  court  of  law, 
and  since  1701  that  they  have  the  same  right  in  a  criminal 
suit.^  The  dentist  is  not  excepted  from  this  rule  and  he,  like 
any  other  citizzen,  is  bound  to  attend  the  trial  of  any  case  in 
court  when  properly  summoned  thereto  to  testify,  like  any  other 
witness,  to  facts  of  simple  observation  of  eye  and  ear.  To  this 
end  a  process  called  a  subpoena  is  issued  from  the  court  and 
served  on  the  witness  ordering  him  to  appear  at  a  certain  court 
on  a  certain  day  to  testify  what  he  knows  in  a  cause  between 
certain  parties,  and  to  attend  the  court  for  that  purpose  until 
discharged.    The  service  should  be  made  a  reasonable  time  before 


^See  2  Bishop,  New  Criminal  Law,  sec.  664. 
H  Wigmore,  Ev.,  sec.  2190. 


LIABILITY  TO  THE  STATE.  239 

the  day  specified  for  his  attendance,  and  the  witness  is  usually 
not  held  in  default  unless  the  service  of  the  process  conforms  to 
these  requirements."^ 

"Sometimes  expert  testimony  is  as  necessary  as  that  of  ordi- 
nary witnesses.  The  following  quotation  from  C.  J.  Biddle  in 
Dills  V.  State  expresses  the  point  of  view  of  the  State  as  regards 
both  common  and  expert  testimony.*  'The  administration  of 
justice  is  the  highest  duty  and  crowning  excellence  of  a  State, 
and  without  the  power  to  compel  a  witness  to  testify,  this  duty 
would  be  embarrassed  and  this  great  public  good  unattained. 
And  in  this  we  can  perceive  no  difference  whether  a  witness  is 
called  as  an  expert  or  as  to  ordinary  facts.  In  judicial  trials 
justice  demands  the  truth  as  to  facts  in  all  departments  of  human 
knowledge,  and  the  State  has  the  right  to  compel  witnesses  to 
appear  and  testify  concerning  all  matters  within  their  knowledge 
belonging  to  human  affairs  wherein  their  testimony  is  not  pro- 
hibited by  law.'  " 

Theoretically  an  expert  may  be  compelled  to  appear  and 
testify,  but  practically  he  will  rarely  be  forced  to  do  so  unless 
he  is  willing.  Partly  because  an  unwilling  expert  witness  is 
less  likely  to  prove  valuable  and  partly  because  it  is  easier  to  find 
another  expert  who  will  be  willing.  A  man  should  refuse  to 
give  expert  testimony  if  he  feels  that  he  has  too  little  theoretical 
knowledge  or  practical  experience  in  the  particular  matters  in 
question  to  enable  him  to  be  of  use  in  the  promotion  of  justice 
in  the  case. 

EXCUSES    FOR    NON-ATTENDANCE. 

"The  dentist,  like  other  witnesses,  is  excused  from  attending 
on  court  if  he  cannot  do  so  without  direct  and  serious  danger  to 
his  health  or  to  his  family's  welfare.  In  rare  cases  a  witnesses 
has  been  excused  from  attendance  where  the  distance  to  be 
traveled  was  great,  the  interruption  to  his  business  considerable, 
and  his  testimony  not  very  important.  The  general  rule  is  well 
expressed  by  Cowen,  J.,  in  People  v.  Davis :-  'The  process  of 


'  Wigmore,  Ev.,  sec.  2199. 
*Mikell  p.  156. 

'15    Wend.    (N.    Y.)    602,   608    (1836).      (Quoted    in    Wigmore    Ev, 
sec.  2204.) 


240  DENTAL  JURISPRUDENCE. 

the  subpoena  demands  great  and  extraordinary  efforts  on  the 
part  of  the  witness  to  obey.  It  commands  him  expressly  to  lay 
aside  his  business  and  excuses.  *  *  *  j^  ^g  iiot  denied  that 
serious  sickness  in  his  family,  such  as  would  prevent  a  prudent 
father  or  husband  from  leaving  home  on  his  own  important 
business,  would  save  him  from  the  imputation  of  a  contempt 
and,  perhaps,  from  an  action.  But  such  a  case  ought  clearly 
to  be  shown  to  the  court.  Above  all,  where  the  summons  allows 
him  full  time,  he  should  struggle  to  get  ready  as  he  would  to 
go  abroad  on  his  own  pressing  business.  If  inevitably  disap- 
pointed, after  exhausting  every  reasonable  expedient,  he  ought 
certainly  be  excused  from  the  payment  of  a  penalty  which  pre- 
supposes some  neglect  at  least.'  "* 

WITNESS  FEES. 

"The  statute  of  Elizabeth  provided,  and  ever  since  that 
statute  it  has  been  required,  that  the  witness  be  tendered  in  ad- 
vance of  the  trial,  and  at  the  time  of  the  serving  of  the  subpoena, 
the  amount  of  the  expense  to  which  he  will  be  put  in  attending 
the  trial,  and  on  demand  of  such  payment,  at  the  time  of  service 
of  process,  and  refused,  the  witness  is  not  bound  to  attend."^ 

If  he  does  attend,  however,  he  cannot  refuse  to  testify  be- 
cause his  expenses  have  not  been  paid.  "This  law  of  the  tender 
of  expenses  in  civil  suits  differs  in  the  different  states.  Generally 
the  statutes  provide  for  the  tender  of  expenses  for  one  day's 
attendance  and  for  travel  one  or  both  ways.  In  criminal  cases 
by  statute  in  most  jurisdictions,  neither  the  prosecution  nor  the 
accused  is  required  to  tender  the  witness'  expenses  in  advance. "- 

Expenses,  in  the  preceding  paragraphs  include  one  day's 
pay,  or  witness  fee,  and  the  same  rules  apply  to  the  expert  witness 
as  to  the  non-expert,  except  that  as  to  the  amount  of  the  fee 
demandable  by  the  expert  Avitness  there  is  much  difference  of 
opinion. 

"It  is  contended  on  the  one  side — chiefly  by  the  experts 
themselves — that  they  should  not  be  required  to  attend  and 
testify  on  tender  of   a  fee  equal  only  in  amount  to  that  de- 


*Mikell  p.  157. 

'Wigmore  Ev.,  sec.  2203.     Mikell  p.  158. 

''Wigmore  Ev.,  sec.  2201.     Mikell  p.  158. 


LIABILITY  TO  THE  STATE.  241 

mandable  by  non-expert  witnesses.  It  is  contended  that  the 
professional  experience  and  knowledge  of  the  expert  are  his 
individual  property,  and  that  neither  the  public  nor  an  individual 
has  a  right  to  compel  him  to  bestow  them  without  adequate  com- 
pensation in  addition  to  the  fee  paid  the  non-expert  witness," 
etc.  Mikell  quotes  a  court  decision  in  "Buchman  v.  State"^  up- 
holding this  view  and  then  Cjuotes  Professor  \Mgmore  in  opposi- 
tion to  it,  as  follows : 

"  'The  grounds  upon  which  it  may  be  concluded  that  no  dif- 
ferent privileges  should  be  established  for  expert  witnesses  than 
for  others  may  be  summarized  as  follows  :  ( 1 )  The  expert  is  not 
asked  to  render  professional  services  as  a  physician  or  chemist  or 
engineer,  he  is  asked  merely,  as  other  witnesses  are,  to  testify  what 
he  knows  or  believes.  (2)  The  hardship  upon  the  professional 
man  who  loses  his  day's  fees  of  fifty  or  one  hundred  or  more 
dollars  is  no  greater  relatively  than  that  upon  the  storekeeper  or 
the  mechanic  who  loses  his  day's  earnings  of  two  or  ten  dollars ; 
each  loses  his  all  for  the  day ;  moreover,  though  the  recoupment 
of  the  witness  fee  of  one  or  two  dollars  is  relatively  greater  for 
the  mechanic,  yet  his  risk  of  losing  continued  employment  by 
enforced  absence  is  greater  than  for  the  professional  man  and 
more  than  equalizes  the  hardship  to  him.  (3)  It  is  only  by  acci- 
dent and  not  by  premeditation  or  deliberate  resolve  with  refer- 
ence to  the  litigation,  that  either  has  become  desirable  as  a  source 
of  evidence ;  neither  the  expert  in  blood  stains  nor  the  bystander 
at  a  murder  has  expressly  put  himself  in  the  way  of  qualifying 
as  a  witness,  so  that  no  claim  based  on  a  special  dedication  of 
services  for  the  case  can  be  predicated  of  one  rather  than  the 
other.  (4)  The  practical  difficulty  of  discriminating  between 
various  kinds  of  experts  and  their  earnings,  and  between  that 
testimony  which  they  give  as  such  and  that  which  they  give  as 
ordinary  observers,  would  be  serious,  and  would  introduce  con- 
fusion and  quibbling  into  the  law.  (5)  Finally,  so  far  as  con- 
cerns the  policy  of  doing  whatever  should  attract  and  not  deter 
desirable  witnesses.  No  one  will  ever  refrain  from  entering  a 
professional  calling  because  of  the  fear  of  having  to  spend  his 
time  gratuitously  at  trials ;  and  yet  an  ordinary  person  is  often 


\S9  Iiul.,  1   (1877).     Mikell  p.  158-160. 


242  DENTAL  JURISPRUDENCE. 

deterred  from  observing  (or  disclosing  his  observation)  a  street 
accident  or  the  like,  because  of  the  apprehension  of  being  sum- 
moned as  a  witness;  so  that  the  latter  sort,  if  either,  should  be 
the  one  to  be  encouraged  by  special  compensation.'  "  Professor 
Wigmore  adds :  'It  has  therefore  been  generally  held  that  an 
expert  witness  is  not  entitled  to  demand  additional  compensation, 
other  than  the  ordinary  witness  fees,  before  attending  the  testi- 
mony on  the  stand.'  "^ 

"While,  generally,  the  expert  witness  cannot  demand  before 
testifying,  in  the  absence  of  a  statute,  the  tender  of  compensation 
in  amount  above  that  of  the  non-expert  witness,  statutes  have 
been  passed  in  some  states  providing  for  the  payment  of  addi- 
tional compensation  to  expert  witnesses.  These  statutes  com- 
monly provide  that  the  amount  of  such  fees  shall  be  fixed  by  the 
court."- 

If  it  is  necessary  for  an  expert  to  do  any  work  preliminary 
to  his  appearance  in  court,  as  for  instance,  to  make  a  post- 
mortem, or  to  examine  or  dissect  a  jaw,  or  make  a  chemical 
analysis,  he  may  demand  a  professional  fee  for  such  work. 

Sometimes  the  opinion  of  an  expert  is  required  upon  facts 
or  opinions  brought  out  in  the  trial  through  other  testimony  than 
his  own,  which  requires  his  attendance  at  a  part  or  all  of  the 
trial  besides  the  giving  of  his  own  testimony.  When  this  is  de- 
manded of  him  he  may  refuse  absolutely,  or  may  require  extra 
compensation  for  it. 

"While  in  most  jurisdictions  in  the  United  States  the  expert 
witness  cannot  demand  extra  compensation  as  a  witness,  it  is  the 
practice  in  all  important  cases  to  pay  him  additional  compensa- 
tion, and  such  payment  is  not  regarded  as  against  the  policy  of 
the  law." 

The  above  paragraph  indicates  the  best  practical  solution  of 
the  question.  An  expert  witness  should  have  an  understanding 
beforehand  with  the  party  in  whose  behalf  he  is  to  testify,  as  to 
the  special  compensation  he  is  to  receive. 

"A  promise  to  pay  an  expert  witness  for  giving  testimony 
on  the  condition  that  his  testimony  leads  to  a  determination  of 


M  Wigmore  Ev.,  sec.  2203. 


LIABILITY  TO  THE  STATE.  243 

the  suit  in  favor  of  the  person  making  the  promise  is  against 
public  policy  and  void."' 

PRIVILEGED    COMMUNICATIONS. 

"Confidential  communications  between  attorney  and  client, 
priest  and  penitent,  physician  and  patient,  and  husband  and  wife, 
sometimes  relate  to  matters  wdiich  then  are,  or  subsequently  be- 
come the  subject  of  judicial  inquiry.  When,  by  law,  these  com- 
munications are  excluded  from  disclosure  in  evidence  they  are 
termed  privileged  coinmunications .  When  the  disclosure  of  such 
communications  is  forbidden  by  the  law.  it  is  upon  grounds  of 
public  policy  on  the  presumption  that  'greater  mischief  would 
probably  result  from  requiring  or  permitting  their  admission 
than  from  wholly  rejecting  them.'  "- 

Under  the  common  law  communications  between  an  attorney 
and  his  client  only  were  "privileged."  Other  privileged  com- 
munications are  so  only  by  statute  law,  and  in  most  of  the  states 
such  laws  have  been  passed  relating  to  communications  between 
patient  and  physician  for  professional  purposes,  between  priest 
and  penitent  in  confessional,  and  between  husband  and  wife. 
Mikell  says  "it  is  believed  that  there  is  not  as  yet  any  statute 
expressly  forbidding  dentists,  eo  nomine,  to  testify  as  to  in- 
formation acquired  by  them  in  their  professional  capacity." 
Dentists  will  therefore  not  be  excused  from  testifying  unless  the 
courts  hold  them  to  be  included  under  the  general  terms, 
"physicians  and  surgeons,"  as  used  in  the  statutes.  Judging 
from  decisions  in  other  matters  it  seems  likely  that  some  courts 
will  so  include  them  and  others  would  not.  Mikell  says  he  has 
only  been  able  to  find  one  case  in  point,  "People  v.  DeFrance."' 
In  this  case  the  dentist  was  required  to  testify  and  the  Supreme 
Court  upheld  the  lower  court,  and  stated  the  reasons  for  it  at 
some  length.  Mikell  urges  several  objections  against  this  de- 
cision and  evidently  believes  that  as  regards  privileged  com- 
munications dentists  should  be  included  with  physicians  and 
surgeons.  It  is  desirable  that  the  laws  be  amended  to  include 
dentists  which  would  end  all  uncertainty  about  it. 


'Pollak  V.  Gregory,  9  Bosw.  (N.  Y.)   116  (1861).     Mikell  p.  163. 
^Brothers  Dental  Jurisprudence,  p.  165-166. 
"104  Mich.,  563  (1895). 


244  DENTAL  JURISPRUDENCE. 

EXPERT  TESTIMONY. 

"1.  In  General. — Ordinarily  a  witness  testifying  in  a  case 
must  confine  his  testimony  to  facts,  he  is  not  allowed  to  state  his 
opinion  or  judgment  from  other  facts  as  premises;  the  jury  are 
as  capable  as  he  of  forming  their  opinion.  When,  however,  due 
to  the  special  knowledge  or  special  qualifications  of  a  witness, 
his  opinion  will  add  something  valuable  which  the  jury  have  not 
and  cannot  otherwise  obtain  from  a  rehearsal  of  the  facts,  such 
opinion  will  be  received  in  evidence."^ 

"  'Experts'  are  persons  examined  as  witnesses  in  a  cause, 
who  testify  in  regard  to  some  professional  or  technical  matter 
arising  in  the  case,  and  who  are  permitted  to  give  their  opinions 
as  to  such  matter  on  account  of  their  special  training,  skill,  or 
familiarity  with  it."  - 

"The  dentist  is  an  expert  witness  within  the  definition,  and 
therefore  may  be  called  upon  to  give  expert  as  well  as.  ordinary 
evidence.  *  *  *  The  position  of  an  expert  witness  is  much 
more  difficult  than  that  of  the  ordinary  witness.  The  latter  testi- 
fies to  facts  he  has  seen.  If  he  testifies  truthfully  the  worst 
he  can  be  convicted  of  is  that  of  making  a  mistake  in  what  he 
thought  he  saw.  The  former  testifies  to  his  professional  opinion. 
His  opinion  is  the  result  of  his  knowledge  of  the  learning  of  his 
chosen  profession,  or  that  learning  plus  his  observation  of  the 
dental  facts  involved  in  the  given  case.  If  he  is  convicted  of 
error  in  his  testimony  it  shows  either  a  lack  of  learning  in  the 
profession  in  which  he  claims  to  be  an  expert,  or  a  lack  of  care, 
or  ignorance  in  the  observation  of  the  dental  facts  on  which  his 
opinion  is  based.  In  either  case  his  reputation  as  a  dentist  suf- 
fers; not  to  speak  of  the  humiliation  he  undergoes  at  the  time." 

When  a  dentist  is  called  upon  to  give  expert  testimony  he 
should  inform  himself  particularly  about  the  matters  he  is  ex- 
pected to  prove  by  his  testimony,  and  he  should  investigate  and 
study  with  the  greatest  care  all  of  the  facts  upon  which  his 
opinion  is  to  be  based,  and  should  consult  as  fully  as  possible 
the  available  authorities  on  the  subject,  so  that  if  counsel  asks 


^See  1  Wigmore  Ev.,  sec.  557. 
*Black,  Law  Diet.   (2nd.  ed.)  466. 


LIABILITY  TO  THE  STATE.  245 

liini  if  such  and  such  an  authority  does  not  hold  a  different 
opinion  than  his  own,  he  may  not  be  taken  by  surprise  and  unpre- 
pared to  answer. 

He  should  remember  that  other  experts  of  equal  or  greater 
knowledge  and  experience  may  be  called  by  the  other  side,  and 
that  the  lawyers  of  both  sides  may  have  studied  the  case  and  the 
authorities  so  carefully  as  to  show  an  unexpected  amount  of 
technical  knowledge  in  the  dentist's  own  field,  and  every  effort 
will  be  made  to  confuse  him  or  induce  him  to  contradict  him- 
self. An  expert  witness  naturally  feels  reluctant  to  appear  ignor- 
ant about  anything  pertaining  to  the  professional  matter  upon 
which  he  is  called  to  give  testimony,  but  it  is  far  better  to  con- 
fess ignorance  than  to  pretend  to  knowledge  or  experience  he 
does  not  possess,  or  to  guess  at  answers  he  is  not  sure  about. 
The  cross  examination  is  pretty  sure  to  expose  any  weak  points 
or  uncertainties  in  his  testimony,  and  "the  only  hope  the  wit- 
ness can  entertain  of  withstanding  these  attacks,  lies  in  his  hav- 
ing told  the  simple  truth,  without  exaggeration,  evasion  or  reser- 
vation, in  a  simple  straightforward  manner  after  thorough 
preparation." 

A  witness  should  avoid  as  far  as  possible,  the  use  of 
technical  words,  the  meaning  of  which  the  jury  may  not  under- 
stand. 

Taylor^  relates  a  case  in  which,  on  a  trial  for  assault,  a 
surgeon  in  giving  his  evidence  testified  that,  on  examining  the 
prosecutor,  he  found  him  suffering  "from  a  severe  contusion  of 
the  integuments  under  the  left  orbit,  with  great  extravasation  of 
blood  and  ecchymosis  in  the  surrounding  cellular  tissue,  which 
was  in  a  tumefied  state,  and  that  there  was  considerable  abrasion 
of  the  cuticle."  Judge :  "You  mean,  I  suppose,  that  the  man 
had  a  black  eye."  Witness :  "Yes."  Judge :  "Then  why  not 
say  so  at  once." 

"Use  of  Books. — In  England  and  in  the  great  majority  of 
states  in  this  Union,  medical  books  are  not  admissible  in  evi- 
dence to  show  the  opinion  of  their  authors. "- 

^Medical  Jurisprudence,   52. 

^Contra    Iowa  and  Alabama;   See   State   v.  Winter,   11   Iowa,  627 
(1887);  Stoudemuier  v.  Williamson,  29  Ala..  558  (1857). 


246  DENTAL  JURISPRUDENCE. 

A  man's  opinion  may  be  formed  or  adopted  from  those  ex- 
pressed in  books,  but  it  must  be  his  own  opinion  he  testifies  to 
and  not  that  of  the  books.  If,  however,  a  witness  has  referred  to 
some  book  as  the  authority  for  his  opinion  the  book  may  be  read 
in  court  for  the  purpose  of  contradicting  the  witness. 

Probably  the  most  important  cases  in  which  dental  expert 
witnesses  are  called  are  for  the  purpose  of  identifying  the  dead 
who  have  been  mutilated  or  disfigured  or  burned  so  as  to  make 
identification  otherwise  difficult  or  impossible.  The  correspondence 
of  the  teeth  and  the  operations  upon  them  with  the  records  of  the 
dentist  who  has  had  charge  of  them  has  in  a  considerable  number 
of  cases  infallibly  established  identity  when  all  other  means  had 
failed.  A  number  of  Chicago  dentists  accomplished  this  for 
some  of  the  victims  of  the  fire  in  the  Iroquois  Theatre  who  were 
otherwise  unrecognizable. 

A  very  important  and  well  known  instance  of  this  sort  of 
testimony  occurred  in  the  early  fifties  in  the  Webster-Parkman 
murder  trial.  Professor  Webster  (of  the  chemical  department 
of  Harvard  University)  had  killed  Mr.  Parkman,  his  landlord, 
probably  in  a  fit  of  anger,  under  some  provocation,  and  had  con- 
sumed the  body  and  clothes  in  his  laboratory  furnace,  in  the 
ashes  of  which  were  afterward  found  a  lump  of  gold,  some 
carved  blocks  of  porcelain  teeth  and  some  fragments  of  bones, 
among  them  part  of  the  lower  jaw.  Dr.  Keep,  the  dentist  who 
had  made  the  teeth,  had  preserved  the  model,  marked  with  Mr. 
Parkman's  name.  The  carved  blocks  fitted  this  model  and  Dr. 
Keep  was  able  positively  to  identify  them  as  the  ones  he  had 
carved  for  Mr.  Parkman,  and  set  on  gold  plates,  the  gold  being 
melted  in  the  furnace.  The  testimony  of  Dr.  Keep  was  one  of 
the  strongest  links  in  the  chain  of  evidence  which  convicted  Pro- 
fessor Webster,  who  afterward  confessed  the  murder. 

Rehfuss  in  his  Dental  Jurisprudence  gives  several  other 
interesting  examples  of  expert  testimony  for  identification  by 
means  of  the  teeth. 

LIABILITY  OF  THE  DENTIST   TO  JURY  DUTY. 

"The  statutes  of  some  states  contain  a  provision,  expressly 
excusing  dentists  from  serving  on  juries.  *  *  *  xhe  exemption 
is  a  privilege,  however,  not  a  disqualification,  and  if  a  dentist 


LIABILITY  TO  THE  STATE.  247 

who  has  been  drawn  on  a  jury  chooses  to  serve  he  cannot  be 
rejected  by  the  parties  to  the  suit  merely  because  of  his 
exemption."^ 

Physicians  are  generally  exempt  by  statute  and  in  the  states 
where  there  is  no  statute  specially  exempting  dentists  they  would 
be  required  to  serve  unless  the  courts  were  to  class  dentists,  for 
this  purpose,  with  the  medical  profession.  An  increasing  num- 
ber of  courts  seem  disposed  to  do  this,  but  Mikell  says  "the 
question  has  arisen  once  under  such  a  statute  in  State  v.  Fisher. "- 
In  this  case  the  Supreme  Court  of  Missouri  by  a  bare  majority, 
four  to  three,  refused  to  exempt  dentists  under  the  statute 
exempting  a  "person  exercising  the  functions  of  a  *  *  * 
practitioner  of  medicine."  Mikell  quotes  at  length  the  decis- 
ion of  the  majority  of  the  court  and  also  the  dissenting  opinion 
of  the  minority. 

Efforts  should  be  made  to  have  specific  enactments  passed 
in  the  states  that  have  not  yet  done  so,  though  it  must  be  ad- 
mitted that  since  the  exemption  is  made  for  the  benefit  of  the 
public  and  not  for  the  benefit  of  the  profession,  there  is  much 
less  urgent  reason  for  it  in  the  case  of  dentists  than  in  the  case 
of  physicians. 


^24  Cyc,  208. 
*119  Mo.,  344  (1893). 


INDEX 


Action,  as  pleasure,  58 
Advertising,   professional,   144,   163, 

165,174 
Air,  moisture  in,  11 
Air,  pure,  need  of,  76 
Almsgiving.  118 
Altruism,  22-37 
American      Medical      Association, 

principles  of  ethics,  172-183 
Arbitration  of  differences,  180 
Art,  definition,  90 

effect  upon  the  soul,  91 
Avarice,  83 

Benevolence,  99,  100 
effects  on  individual,  120 

Body,  function  of,  66 

Business,    difference    from    profes- 
sion, 140 

Calmness,  63 
Calumny,  123 
Character,  influenced  bv  happiness, 

41 
Cheerfulness,  65 
Children,  instruction  of,  148 
Cleanliness,  78 
Clothing,  71 

Code  of  ethics,  see  Ethics,  code  of 
Commissions,  163 

and  split  fees,  157-159 
Compassion,  99,  100 
Compensation,  for  expenses,  175 

when  due,  208 
Conscience,  authority  of,  12 

definition  of,  26 

individualization  of.  34-36 

relation  to  custom,  32 
Consultant,   should  not  become  at- 
tendant, 178 
Consultation,  163.  165,  176 

discussions  in,  177 
Contentment,  59 
Contracts,  express,  197 

for  vk^ork  on  Sunday,  198 

implied,  197 

required  to  be  in  writing,  195 
Courage,  60,  61 
Creative  fancy,  86 
Criticism,  to  be  avoided,  179 


Crouse,  Dr.  J.  N.,  168 
Crown  and  Bridge  Co.,  168 
Culture,  87 

Cures,  not  promised,  174 

Custom,  definition  of,  27 

relation  to  duty,  28 

Damages,  for  malpractice,  232 
Deception,  intentional.  125-128 
Degeneracy,  10-12 
Dental  Boards,  powers  of.  190 
Dental    laws,    sustained    by    courts, 

189 
Dental  Protective  Association,  168 
Dentist    and    physician,     relative 
duties,  166 

as  a  witness,  attendance  of,  238 

contract  with  patient.  195 

duties  to  other  dentists,  150-152 

duties  to  the  profession,  152 

duty    to   join   societies    and    read 
journals,  153 

relation  to  patient,  194-200 

status  of,  184-188 
Dentistry,  definition  of,  184-187 

a    department    of    medicine,    184, 
185 

right   to    practice,    power   of    the 
state  in  regard  to,  188 
Deportment.  184 
Development  of  man.  23-25 
Drink  habit,  67-70 
Duties  to  patients,  164 
Duty,  authority  of,  27 

doctrine  of,  50 

kinds  of,  54 

relation  to  custom,  28 

Eating,  regular  habits  of,  li 
Egoism.  22,  11 
Emergency  cases,  179 
Equity,  105 
Equivocation.  121 
Ethics,  business,  139 

Christian,  14-20 

code  of  Illinois  State  Society,  163 

code  of  National  Dental  Associ- 
ation, 164 

definition  of.  7 

dental,  origin  of,  5 


250 


INDEX 


Ethics 

for  employers,  139 

Greek,  13 

history  of,  12-20 

medical  code,  origin  of,  161 

professional,  138 
Evolution,  10-12 
Exercise,  need  of,  78 
Expenses,  compensation  for,  175 
Extravagance,  83 


Falsehood,  definition,  121 

effects  of,  123 

relation  to  cowardice,  123 
Fees,  165 

ethics  of,  155 

of  expert  witnesses,  241 

secret  division  of  condemned,  181 
Flattery,  124 
Flint,   introduction  to   commentary, 

on  code  of  medical  ethics,  160 
Forgiveness  and  retaliation,  107-109 
Frugality,  82 


Gifts,  by  patient  to  dentist,  198 
Golden  rule,  22 

Gratuitous  service,  limits  of,  180 

H  abitation,  70 
Happiness,  41-43 
Hippocrates,  oath  of,  6 
Homicide,  237 
Honor,  92 

significance  of,  93 
Humility,  94 
Hypocrisy,  124 

I  dealism,  45. 

Illinois   State  Dental  Society,   code 

of  ethics,  163 
Impulse,  relation  to  virtue,  50 
Instincts,  relation  to  custom,  28 
Intemperance,  56 
Interest  on  claims,  209 
Interference,    duties    of    physicians, 

178 


J  urisprudence,  dental,  184-247 
Jury   duty,    liabilitv   of   the    dentist 

for,  246 
Justice,  101-105 

formula  of  duty,  101 

promotes  security  and  peace,  103 


Kant,  intuitional  ethics  of,  30 
Knowledge,  86-89 
of  self,  96 

Law    and    morals,    incongruity    be- 
tween, 110-113 
Liability,  evidence  to  establish,  209- 
211 

for  abandonment  of  patient,  223 

for    "assault    and    battery"     for 
operating  without  consent,  236 

for  breach  of  contract,  199 

for  communicating  disease,  224 

for    compensation,    201,    202-204, 
206  _ 

for  failure  to  complete  work  in 
time,  214 

for   failure   to   use  proper   mate- 
rials, 213 

for  improper  use  of  anaesthetics, 
224 

for  malpractice,  217 

for  missed  appointments,  200 

for  services  of  unlicensed  dentist, 
207 

for  treating  patient  without  con- 
sent, 226 

of  county  or  state,  206 

of  patient  to  dentist,  199 

to  patient  for  breach  of  contract, 
213 

to  state  for  illegal  practice,  234 
License,  revocation  of,  193 
Lie  of  necessity,  125-127 
Love,  119 
Love  of  neighbor,  116 

limitations,  116-118 


M  agnanimity,  106 
Malpractice,    abandonment    of    pa- 
tient, 223 

admission  of  lack  of  skill,  227 
advising      erroneous      treatment, 

222 
and  the   state   of   dental    science, 

220      _ 
communicating  disease,  224 
contributory    negligence    of    pa- 
tient, 229 
damages  for,  231 
definition,  217 
due  to  lack  of  skill,  218 
effect  of  locality,  219 
effect  of  recovery  of  fee,  229 
effect  on  liability,  208 
erroneous  prescription,  223 


INDEX 


251 


Malpractice 
established  methods  of  treatment. 

220 
improper  use  of  anaesthetics,  224 
liability  for  that  of  others,  227 
omission  to  give  instructions,  223 
proof  of,  230 
statute  of  limitations,  232 
when  services  are  gratuitous,  221 
wrong  diagnosis,  222 

Materialism,  46 

Medical  laws,  175 

Medical  societies,  173 

Modesty,  58,  96 

Moral  ideal,  8-12 

Morality,  relation  to  religion,  43-45 


National   Dental   Association,  code 

of  ethics,  164 
Nutrition,  66 


Oath  of  Hippocrates,  6 

Obstetric  work,  substituting  in,  180 

Opinion,  conflict  of,  178 


Papers    read    at    society    meetings 
rules  in  regard  to,  153 

Patents,  167 

and  perquisites,  175 
process,  168 

Patience,  delicacy  and  secrecy,  172 

Patience,    relation  to   perseverance, 
62 

Patient,  of  colleague,  180 
instruction  of,  147 
must  not  be  neglected,  173 
relinquishing  to  regular  attendant, 

180 
welfare  of,  147 

Perjury,   as   worst    form    of    false- 
hood, 124 

Perseverance,  as  courage,  62 

Pharmacists,  182 

Physicians,     duties     in     epidemics. 
181-182 
duties  to  the  public,  181 
when  several  are  summoned,  179 

Play,  IZ 

Pleasure,  relation  to  welfare,  9 

Poverty,   relation  to  economic   vir- 
tue, 84 

Practice,  by  contract,  181 
winning  a,  145-148 

Practicing  on  Sunday,  238 


Prices  and  fees.  140-143 
Pride,  94 

Principles  of  medical  ethics  of  the 
American  Medical  Association, 
172-183 
Privilege,  relation  to  duty  to  soci- 

ety,_81 
Profession,    as    basis    of    economic 
life,  79-81 
distinction  from  business,  142 
honor  of,  173 
safeguarding,   175 
service  to  humanity,  172 
Professional  character,  maintaining 

of,  164 
Prognosis,  173 
Proletariat,  80 
Property,  basis  of  economic  life,  79 


R  ape,  237 

Reason,  influence  upon  impulse,  51 

Recreation,  74 

Registration,  192 

Religion,  relation  to  morality,  43-45 

Remedies,  secret,  175 

Resolution  adopted  by  American 
Dental  Association,  condemn- 
ing endorsements  of  medicines, 
etc.,  159 

Ridicule  of  others.  119 

Right,  duty  to  protect,  101 
of  punishment,  104 
to    practice,    burden    of    proving, 
235 

Rights,  principle  of,  109 


Secrecy.  172 

Secrets,  professional,  162 

Self-control,  definition,  55 

Selfishness.  119 

Services,     of     physicians     to     each 
other,  175 
to   patient   of   another   physician, 
179 

Slander,  123 

Social   calls   on   patient  of  another 
physician,  178 

Specialist,  patient  referred  to,  177 

Spheres  of  interests,  113-115 

Spiritual  life,  86 

Statute  of  limitations,  212 
in  malpractice  cases,  232 
in   prosecutions   for   illegal   prac- 
tice, 236 

Statutes,  requirements  of,  190 


252 


INDEX 


Struggle,  for  existence,  21 


for  lives  of  others, 
Sympathy,  97-99 


21 


Temperance,  56 

Testimony,  expert,  244 

Truth,  adaptation  to  hearers,  136 
duty  to  instruct  in,  130 
martyrdom  for,  132-134 
public  communication  of,  131 
service  of  neighbor  vi^ith,  129-137 

Truthfulness,  128 


Veracity,  positive  side  of,  129-137 
relation  to  love  of  neighbor,  121 

Vice,  definition  of,  53 

Virtue,  definition  of,  50 
kinds  of,  55 
relation  to  happiness,  39 


Virtue 

relation  to  welfare, 
Vulcanite  Co.,  168 


39-41 


Warranty  of  cure,  breach  of,  215 
Wealth,  as  means  to  economic  vir- 
tue, 84 
Welfare,  relation  to  virtue,  39-41 
Will,  freedom  of,  definition,  48 

freedom  of,  metaphysical,  46 

freedom  of,  psychological,  46 
Witness,    excuses    for    non-attend- 
ance, 239 

expert.  239-244 

expert,  identification  by  the  teeth, 
246 

expert,  use  of  books,  245 

fees,  240 

fees  of  experts,  241-242 

privileged  communications,  243 


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